Conference Agenda with Track s2

First National Symposium on the Community Advice Office Sector in South Africa

Innovation and Sustainability

24 & 25 November 2014, Johannesburg Table of Contents

2 Introduction The First National Symposium on the Community Advice Sector in South Africa, organised by the Association of Community Advice Offices of South Africa (ACAOSA), the National Alliance for the Development of Community Advice Offices (Nadcao) and sponsored by the Charles Stewart Mott Foundation, the Raith Foundation and the Foundation for Human Rights, aimed to promote the achievement of consensus on key issues related to recognising the value of the CAO sector, national policy alternatives in regulating and sustaining the CAO sector, strengthening existing CAOs, and enhancing implementation, monitoring and accountability. This report captures the keynote speeches, presentations and breakaway sessions and presents the symposium declaration.

Speeches

Opening Remarks Mr Albert Makwela, ACAOSA President

Mr Albert Makwela opened the conference by referring to the 2014 celebration of 20 years of democracy in South Africa and linking these festivities to the first birthday celebration of ACAOSA. ACAOSA was launched in November 2013 as a representative the CAO sector in South Africa, which provides paralegal services to the most vulnerable communities. Mr Makwela singled out the importance of the signed Memorandum of Understanding between ACAOSA and Nadcao, which stipulates that ACAOSA will take over full responsibility of representing the CAO sector in South Africa over the next two years. He further mentioned it is time to celebrate whilst taking note of the challenges faced. He urged the funding community to continue supporting the sector and promised that in the next three years ACAOSA will achieve the goals that it has identified for itself. He welcomed all the delegates to the first symposium of the CAO sector in South Africa and wished everyone a pleasant stay.

Keynote Address: “The value of Community Advice Offices in Post-Apartheid South Africa” Deputy Minister John Jeffrey, Department of Justice & Constitutional Development

According to the Deputy Minister, the CAO sector fulfils a very important role in demanding social justice and access to government services for the poor and marginalized. For him, the uniqueness of the sector lies in its ability to form long-term partnerships with government and civil society organisations (CSOs). He is aware that paralegals bring a specific skill set, as they need to have knowledge of the law and

3 Report of First National Symposium on the Community Advice Office 24-25 November 2014 conflict resolution, but also need to be activists and committed to help people with their legal and development problems whilst empowering them. “It’s a broad spectrum of skills. You are educators of the law and can play a leading and supporting role in campaigns for improving the community”, he emphasised.

A challenge identified by the Deputy Minister is how to enhance access to justice given the limited resources available. He singled out some of the initiatives implemented by his department, such as the small claims courts, the strengthening of Legal Aid South Africa, the opening up of new courts and the renovation of old ones, bringing courts closer to the people and extending access, especially to rural areas. In addition to that, there has been increasing support for community-based organisations as well as the aim to build greater awareness of constitutional rights.

The Deputy Minister further stressed that he believes access to justice should be addressed holistically. He clarified that regulation will not automatically lead to more public funding for the CAO sector. However, it should make it easier for the CAO sector to approach the private sector and other sectors of society. He suggested that his department, in consultation with Nadcao and ACAOSA, find a way to move forward faster with regards to the Legal Practice Act: “What issues can be resolved before the bill is passed? We have a three-year timeline to have these consultations, this means we are looking at legislation being in place only in five years’ time. We need to move the issue forward, we need to start engaging with stakeholders”, he stressed. He assured the audience that there is commitment from government’s side to move faster on the issue of regulation of the paralegal profession: “From the side of government the issue of access to justice is important too. We need to do this together. Government provides services, the CAO sector needs to assist the community to access these services. It’s essential for realising democracy. You are a very important sector. The problem is that in South Africa people have wonderful rights but if they don’t know about them these rights are meaningless.”

Question from the audience: “When we speak about paralegals in companies and communities are we speaking of two different professions?”

Deputy Minister: “That’s something to be looked at, at the moment there is no legal definition. Being a paralegal means you work in the legal sector without being an attorney or advocate, it needs to be specified. Both those sectors would need to be covered by the legal definition.”

Question from the audience: “My question is about the issue of Legal Aid and funding. My concern is that government is giving funding to Legal Aid South Africa; now Legal Aid is bringing evictions. The people

4 that are evicted come to the CAO for assistance. How do we draw the two together? We have no funding, yet we’re the people who need to go from the start to the finish with these affected people.”

Deputy Minister: “I’m not sure what you mean with evictions. I’d be very interested to know who is bringing those cases. The State has a statutory responsibility. Legal Aid South Africa (LASA) is the government’s prime funding source for providing legal support. They are also short of money though… From the executive and parliament we’ve always been very impressed with the work done by LASA, it’s a very well-run organisation. One of the problems with the justice system is that things get stuck in places where they shouldn’t. Paralegals and CAOs assist to ‘unstuck’ something. To me, the evictions seems to be an issue where CAOs have an important role to play.”

Question from the audience: “The fact that CAOs offer services to the most vulnerable communities is indeed correct. We have not considered the issue of middle-income access to justice. However, I feel that we don’t realise that very often those that have a job are only one pay check away from poverty. They are as vulnerable as the most marginalized. My question would be: If regulation of the sector is not going to unlock public funding would government then consider the existence of independent paralegals?”

Deputy Minister: “I’m not sure what you mean by independent paralegals, but just to say yes, I mean, I agree, often people who fall outside LASA’s means test are the ones who suffer the most: the working class and lower-middle class. The more indigent people qualify for pro bono and legal aid, others don’t. This was a great concern while drafting the Legal Practice Act. We need to investigate more and also look at international best practice. Should we be looking at a more comprehensive legal insurance scheme? The average working class or middle class person cannot really afford legal representation. But we’ve got the small claims courts which are free.”

“The mixed model of Justice in South Africa and its impact on marginalised communities” Justice Dunstan Mlambo, Chairperson of Legal Aid South Africa (LASA)

South Africa has a mixed model approach to justice. Access to justice rests on two premises: primary and secondary access to justice. Primary access to justice takes place at the grassroots; it’s the entry level, the first stage where a person interfaces with the justice system. It accounts for the largest number of interactions between service providers and those who require services. Primary access to justice largely revolves around legal information sharing. It’s not just about legal assistance however; empowerment is at its core. Most people who approach CAOs have no interest in going to court and litigate. Justice Mlambo: “To me the primary level is a very important stage; it determines what happens to a person next. However,

5 Report of First National Symposium on the Community Advice Office 24-25 November 2014 it’s the second level that we always speak about: court access, litigation, legal representation, etc. It is secondary because less people are assisted. Yet it consumes the biggest chunk of resources. It’s an issue we need to grapple with.” According to Justice Dunstan Mlambo, ensuring the sustainability of the primary access to justice sector in South Africa is a long outstanding milestone that has to be achieved. The question for him revolves around how to achieve this.

Legal Aid South Africa (LASA) employs lawyers and paralegals and operates a legal advice line. Justice Mlambo shared some figures with the audience. In the past financial year that ended in March 2014, the general advice matters finalized by paralegals and the legal advice line were in excess of 328,000. Matters finalized by lawyers in court accounted for 33,000 cases. Yet only 2, 7% of the total budget was consumed by general advice, versus 68% of the budget being consumed by lawyers’ costs. One could ask whether this is a cost-effective way to render services. According to Justice Mlambo, it is. He explains that the mixed model approach was implemented at the dawn of democracy, when the Legal Aid board of the time was bankrupt, mainly because it couldn’t cope with the lawyers’ fees. Research showed that if Legal Aid would employ its own lawyers, by using a salaried lawyer’s model, it would be able to carry a much heavier caseload. In order to make the organisation more cost-effective the mixed model approach was adopted.

In addition to the salaried lawyers LASA employs, the organisation continues to brief duty care lawyers, under specified circumstances, especially when matters are too complex or when LASA doesn’t have the capacity. LASA also holds agreements with legal NGOs – such as the Legal Resources Centre. These NGOs cover high impact matters where the result will impact on a bigger group of people. A last component is agency agreements. In rural areas where LASA has no presence, it signs an agreement with an attorney based there who will operate as a de facto justice centre.

According to Justice Mlambo, it has proven prudent to work with the mixed model. It would cost LASA three times more to brief an outside lawyer compared to employing salaried lawyers. Another benefit of the model is that the judiciary no longer has to chase fees, LASA is now accountable to them.

LASA also addresses the primary part of access to justice and employs a number of paralegals. Justice Mlambo: “I’ve always challenged the board at LASA though, that it doesn’t help to be involved in empire building. We can’t continue to be the only sustainable access to justice provider when there is a huge sector out there that also deserves to be sustainable. I am prepared to assist to ensure that we reach that milestone of sustainability for the primary access to justice sector. To know that it’s a sector whose future remains uncertain does not sit well with me. Sustainability creates confidence. If you operate from a basis where there are months that people do not receive salaries, it’s a problem.”

6 Justice Mlambo challenged the audience to ‘stop talking and come up with something we can implement’. He encouraged Nadcao and ACAOSA to look at best international practice on how to create sustainability. He highlighted the Malawian example, where paralegals were used in the criminal sector to decongest prisons. Justice Mlambo: “They flushed out people that the system had forgotten. In Australia they have community legal centres and advice offices. They remain independent although they receive government funding. The government said: ‘If you want funds we’ll issue tenders, you must tender for the work, and show the money didn’t disappear in a hole, you’ll have to demonstrate result’. Then there is the Dutch model. I was highly impressed with it! They have Legal Aid Service Counters that are completely separate and independent from the Legal Aid Practice Board of the country. I suggest you look into these models, go there and get assistance”, he pressed the audience.

Justice Mlambo ended his speech with a clear invitation to Nadcao and ACAOSA to use the skills, expertise and networks he has to offer: “You need to come with something that you can sell to government, something that government cannot run away from. Accountability is key. It is unfortunate that lawyers took position against the CAOs in the run up towards finalising the Legal Practice Act. I don’t think lawyers should have the last word. Use this opportunity that the Deputy Minister speaks about, he’s passionate. I challenge lawyers. I ask them: ‘Why are you fighting paralegals?’ You are lucky though, that even though they are against you, you still operate. There are countries where lawyers actively make sure that no paralegal operates. Let’s build on what we have and make sure we become sustainable. I’m laying down that gauntlet here today. You’ve heard what we do at LASA. I suggest that Nadcao and ACAOSA reflect and get back to me on how we can help you. Those of us who are able to speak to influential people: how can you use us to help this sector to become sustainable? I don’t have the answer, but a collective discourse will lead us there. Let’s not come here today and come back five years later and talk about the same things! I’ll be here again tomorrow to see what happens, I’m here to help.”

The Birth and Growth of ACAOSA: Foundation and Collaboration Phases of the Association Mr Seth Mnguni, ACAOSA Chairperson “More than 20 years has passed since the concept of Paralegals and Community Advice Offices began to take momentum in a structured manner.

We have a practical conception of it and a clear programme which is being continuously developed, clarified and enriched with new approaches and ideas, this process demands creative efforts from leadership both inside and outside the sector.

7 Report of First National Symposium on the Community Advice Office 24-25 November 2014 The CAO Sector has already found expression in a series of state legislative documents, these includes the recently promulgated Legal Practice Act which instructs the Council to, within two years make an investigation on the regulation of Community Based Paralegals, the Vision 2000 by the Department of Justice & Constitutional Development and the Legal Services Charter, all aimed at ensuring a reliable, regulated and sustainable access to justice at community level and secure the role of community based paralegals.

Parallel to the day-to-day work happening in CAO’s of making justice accessible to the indigent and marginalised communities, we have continually achieved some milestones in a range of areas and there are today encouraging results, but there has been, as it should be, some errors and miscalculations, and as result today we identify more clearly our strengths and weaknesses, we know from our experience the realities of doing nothing for fear of making mistakes.

We note the First Congress of community-based paralegals held in 1994, which still holds a special place in the history of the sector, which had to give answers to issues of access to justice in the post-apartheid era and the role of paralegals in community advice offices, as a baseline for marking milestones on our way.

Taught by our bitter experience as a society, the Congress resolved that the sector was more relevant going forward to strengthen democracy through participation therefore we did not run ahead of ourselves in our chosen path but informed by the realities of our country. We also needed new thinking, new innovative methods to address the new challenges facing us. The theme of this Symposium is “Innovation and Sustainability”, it seems that we have finally found a grounding path for the sector after losing our way.

Today I am pleased that there’s growing understanding both from within and outside the sector that, we proceed from the assumption that observance to the law is a matter of principle for us and we have taken a principled view of the issue but at the same time there can be no observance of the law without democracy, in the same way democracy cannot exist without the rule of law because the law is designed to protect society from the abusers of power and it guarantee citizens and their organisations and other collectives, their rights and freedoms.

That is why today we are gathered here to take a firm stand on the issue because the laws of our country are legitimate because we fought for them.

The vision of the Department of Justice is a transformed and accessible justice system, which promotes and protects social justice fundamental human rights and freedom’s its mission is to provide transparent, responsive and accountable justice for all.

8 Another strategic objective is increased access to justice services to underserviced communities, in this regard the plan envisages that DOJ&CD will find creative ways of using existing facilities to serve more people and increase its reach in underserviced communities.

It is difficult to comprehend how this might be possible without the continued services of Community Advice Offices and the Community-Based Paralegals who are already on the ground.

The Birth and Growth of ACAOSA

The collapse of the CAO sector in 2004, present us with an uncertain path and created a new discourse for marginalised communities that rely on the sector’s support and guidance. Nadcao, as a key strategic partner, supported the resurgence of the sector and will remain instrumental in the next two phases of its development until 2016.

ACAOSA was officially launched in 2013 as the voice and regulatory structure of community advice offices. The footprint of ACAOSA is its Provincial Councils in the nine provinces and their efforts to continue to consolidate the work of advice offices and amplify their efforts and results.

The Multi-Provincial Meetings, which took place leading to the Launch of ACAOSA in 2013, ensured that the sector had the mandate to proceed with the establishment of a national voice and to elect the leaders that would take the process forward.

The development of leaders to assume these important roles remains critical, and we thank the Technical Support and Dialogue Platform (TSDP) for their efforts in guiding this process, their approach which was not classroom or theory based, was embedded in creating opportunities that would expose leaders to the realities and complexities of leading in a changing and challenging environment. And today, we give credence to their work as we see a room full of amazing and confident leadership that can engage, debate and represent the issues of the sector.

In the first year of its operation, taking into consideration our limited human capacity and communications capability, ACAOSA has achieved some significant strides, a lot of thanks must go to the leadership and staff of Nadcao, who dedicated their time to ensure the delivery of agreed results, I will note some of these strides: 1. With the support from the Technical Support and Dialogue Platform (TSDP), under the direction of Mr Shaun Samuels, a Strategy Plan has taken root which confirms the result of the sector where “ACAOSA intends to enjoy national recognition and have in place institutional and human resource capabilities as the official voice and representative of CAOs in the country committed to ensuring access to justice for all in the country.”

9 Report of First National Symposium on the Community Advice Office 24-25 November 2014 2. A Secretariat is starting to take shape to deal with operations and programmes; Nadcao has gracefully shared the time of its Director, Ms Nomboniso Nangu Maqubela, who leads the Secretariat of ACAOSA, ensuring continuity and effective resource management;

3. All provinces have had their Annual General Meetings this year and elected new leaders for the next 3 years, and we are encouraged by the emergence of new blood and the injection of youth in the leadership core;

4. The Women’s Chapter of ACAOSA, WiCAO, held its strategy meeting this November and has defined a path and outlined its programmes for the next 3 years;

5. We have secured new partnerships with organisations that can advance our work and we have developed a partnership matrix that defines these relationship and we are clear of the value that can be derived from these;

6. We have been supporting the Garankuwa Magistrate’s Court in Gauteng, with mediation services and over a few months have successfully resolved 30 cases; we need to engage better with the Court Annexed Mediation of the Department of Justice to ensure that as a sector we can participate in ways that will sustain and not cripple the sector;

7. We have been contributing jointly with the Black Sash and other civil society partners, in the Ministerial Task Team of the Department of Social Development to address the issues of illegal deductions from pensions;

8. We have coined a new way of developing the capacity of the next generation of leaders with the Black Sash as our key strategic partner, we are still looking for funding support for our Annual Summer School;

9. In our partnership with Probono.org, we have seen an encouraging and steady increase of Pro Bono legal services coming to the fore and tackling complex but ground breaking cases;

10. We are taking part with Nadcao in the Donor Alliance Network, which is organised around establishing common ground on how the sector can best be resourced.

11. The ACAOSA Western Cape has developed a solid foundation for a partnership with the NPO Directorate of the Department of Social Development to improve the compliance of community-based organisations in that province.

The Foundation and Consolidation of ACAOSA

ACAOSA developed a three-year timeline for its institutionalisation framework:

10  2014 - Foundation Phase – establishment phase, Nadcao assumes the role of lead agent; this phase has been concludes now;  2015 - Collaboration Phase – Nadcao and ACAOSA both assume joint lead agency role; and  2016 - Transference phase – ACAOSA will assume the leadership role and Nadcao will assume the back office support role.

The model of the CAO sector in South Africa is unique, and is anchored around two organisations that work hand in glove until 2016 to ensure the long-term sustainability and development of the CAO sector.

1. Nadcao will continue to explore the sustainability options, improve the research and evidence based capacity of the sector as well as building the institutional capacity of ACAOSA.

2. ACAOSA will focus on national cohesion and quality assurance over the two years, this is to ensure that there is significant focus on the quality of service provided by the sector to its communities and to promote the service delivery standards and qualifications of the providers of that services. This means that Provincial Councils will focus greatly on ensuring that the service delivered by community advice offices are of a particularly good quality, and there is a framework for the services guided by a Code of Conduct and Membership Policy. Therefore much effort will go into supporting the efforts of the ACAOSA Provincial Councils to support the work of community advice offices on the ground.

3. ACAOSA will also lead the processes that will address the opportunity for a possible regulation of community-based paralegals as part of the providers of legal services. Our work has started and we have initiated conversations with the officials of the Law Society, we still have to explore these with the other structures with the Law Society. We have also had the opportunity, through the support of the Foundation for Human Rights to engage the legislative arm of the Department of Justice.

Conclusion

We are extremely encouraged by the efforts of the Deputy Minister, Mr John Jeffery who guided us during this time as a member of the Portfolio Committee to ensure that community based paralegals are acknowledged as a form of legal practice. We note the unwavering support of Judge President Mlambo who continues to support the role of community advice offices as part of the machinery of this effective mixed model of justice in the country. The efforts by the Portfolio Committee under the leadership of Advocate Mathole Motshekga have been outstanding and must be acknowledged in these platforms.

11 Report of First National Symposium on the Community Advice Office 24-25 November 2014 We appreciate the positive spirit and the growing Donor Alliance, which has taken shape in the last few months. These efforts have been made positive by the steadfast support and dedication of the CS Mott Foundation, under the guidance and leadership of Ms Vuyiswa Sidzumo. We note the Foundation for Human Rights, and its partners in the DOJ and the European Union delegation, for their efforts and appreciate the FHR for being the largest contributor and funder of our work and we look to the next five years, with much anticipation.

The sector today is represented by members of the National Council, under the leadership of President Makwela and his deputy, Ms Lucky Mkhize. We also have representative from the nine Provincial Council and members of the Women’s Chapter, under the stewardship of their Chairperson, Ms Beauty Ntuli.

ACAOSA is convinced that the efforts to collaborate with key partners including the State to advance access to justice in the country is the appropriate model for the sector and the next two years will focus on developing this agenda forward.

I do thank you for coming and hope our deliberations and engagement will result in a Declaration of Support for the sector that will propel us to new heights towards sustainability.”

12 Panel Discussions

The State and Value of the CAO Sector (Facilitated by Shaun Samuels)

Shaun Samuels opened the first panel discussion on Monday. He pointed out that the lack of strong evidence of impact has been one of the reasons why the CAO sector has been struggling with sustainability challenges. Through engaging the National Treasury around issues of funding, Nadcao’s argument regarding the added value of the CAO sector has been maturing. However, the National Treasury challenged Nadcao to indicate the cost saving to state and households if South Africa were to have a fully functional and viable CAO sector. As a result, in 2014, Nadcao commissioned an independent research project and partnered on two other projects, which offer evidence that the CAO sector is worth investing in. The three research teams presented their findings in the plenary discussion.

Presentations Business Case and Baseline for the Community Advice Office sector Adv. Michelle Odayan, Indaba-Africa

Adv. Michelle Odayan’s organisation, Indiba Africa, was commissioned to carry out a baseline for the CAO sector and present a business case. She pointed out that the CAO sector has gone through a series of self-reflection processes. It has metamorphasised from the early 80s onwards. Some significant developments over a period of time were highlighted in her research (see table 1).

According to Odayan, the significance of the CAOs and community-based paralegals during the days of dismantling Apartheid and agitating as activist groups cannot be underestimated. In those days, it was a sector that was particularly attractive to faith based organisations and international funding organisations. The CAOs functioned as conduits through which money for the struggle would be invested.

Table 1 – CAO sector biography

Pre 1994 1994 2014

• Activist • Legitimate government • 500 CBPs working in 313 • International resources • Legal and constitutional CAOs across South Africa • Legal Action & Rights education • Increased focus on social awareness • Facilitator justice • Cohesion (common goal • Diversion of resources to • Decline in funding vs.

13 Report of First National Symposium on the Community Advice Office 24-25 November 2014 of dismantling apartheid) constitutional transition increased community reliance • Link between CSOs and • Outflow of human • Mobile for greater legal practitioners capacity & leadership to community participation • Social justice efforts government • More structured networks • Fragmentation towards harmonising the sector • CAO governance standards • Self-reflection • Repositioning of CAOs as voice of marginalised • Higher level social and economic value • Partnership and accountability

In the period from ‘91-’96 with a legitimate government coming into place, the strengthening of government delivery and funds transferal from the civil society sector towards government caused an outflow of human resources and leadership from the CAO sector into government. This caused some level of fragmentation, as the need for and the reliance on the historical support that the sector had provided started to change. The sector had to reinvent itself. Some CAOs had longevity and resilience, while others folded.

In 2014 the landscape has changed completely. The lack of access to a whole range of rights based issues is affecting communities across South Africa. At the same time, there is a need for greater participation in local government structures and holding government accountable whilst demanding basic human rights and services such as WATSAN. Structures that represent the CAO sector have been set up, such as NADCAO and ACAOSA. The sector has made a start with setting governance standards for itself. There is a growing interest in repositioning the sector as the voice of the marginalised, as a sector that represents real social justice voices. At the same time there is growing interest to understand the sector and its value better. According to Odayan, the value of the CAO sector lies in the fact that CAOs:

• Provide information and direction to marginalised communities, ensuring the most appropriate pathway through or away from the justice system; • Embody a practice anchored in democratic principles; • Are effective in solving justice problems; • Are accessible and generally cost-effective; • Provide a community link that improves the quality of legal services.

CAOs are effective in solving justice problems because they:

14 • Bring multiple and diverse skills to understand rights based social justice need of communities; • Are a convergence of diverse and interdependent professions within the community development and social justice environment; • Bring cultural competence to determine the balance between formal and traditional redress for community disputes; • Encourage citizen participation and advocacy to promote accountability and transparency within government institutions; • Provide community leadership.

CAO employees are social workers, mediators, educators, traditional community leaders, interpreters, administrators and lawyers (all at the same time) and apply these skills according to the specific needs of the situation and the community. They educate communities and empower people to develop self-reliance with respect to their legal problems. They help communities learn about their basic human rights, alternative mechanisms for protecting and promoting these rights, and the skills necessary for realizing them.

As figure 2 points out, CAOs and community-based paralegals are generally called on to be everything to everyone at any given time. They have a broad and unstructured role. They provide a service that is ‘of the community for the community’. Without the CAOs, those environments that are on the periphery of everything (not only in a geographical sense but with regards to transport, literacy and language capabilities in order to understand the law) would have no access to justice. There is no cost attached to the service, which is befitting and a value that cannot be ignored. People from marginalised communities can access this service without fear, favour, or financial burdens. The referral system is an important function of the CAOs, it is clear this is not just referral for legal support but to all kinds of other agencies such as Home Affairs, housing, etc. CAOs offer the total package.

As Advocate Odayan pointed out, the CAO sector may not be able to articulate its role as clearly as the more recently formed social justice movement has been able to. However, they give meaning to and bring alive access to justice on a daily basis. In addition to that, they are able to navigate the duality of traditional and formal court based systems. They try to find the best ways to resolve disputes rather than always relying on court based processes. They have more than twenty years of experience. As Advocate Odayan states: “We cannot underestimate the power and value of community voices in holding government to account and promote human rights, good government and service delivery.” CAOs are also a platform for building community leadership. They are intrinsic to educating the future generation, which will guarantee the sustainability of communities.

Figure 2 – CAO practice

15 Report of First National Symposium on the Community Advice Office 24-25 November 2014 South Africa spends little and derives a lot in terms of performance indicators from the primary access to justice level, although the outcomes are not easy to quantify. One of the outcomes is the avoided cost. According to Indiba Africa’s research, CAOs are accessible and cost effective because they:

• Use problem solving approaches; • Have a positive impact on community relations; • Help lessen the burden on courts and other justice sector institutions; • Rely a lot on volunteerism; • Contribute to community learning, awareness and general knowledge development.

“If we were to quantify the value of the CAO sector since the first CAO opened in the period of 1925-’29, I’m sure we’d be completely amazed by what it has contributed to the emancipation of South Africa”, says Advocate Odayan. According to their research, the CAO sector contributes to greater access to justice and softens the boundary between the primary and secondary justice levels in the country. The CAO sector has contributed significantly to the care and wellbeing of communities, although this often not easily quantifiable but nevertheless accrues to the “community development skills” and the provision of a “knowledge bank”. Other benefits include the intrinsic benefit to society of providing a certain level of social service, welfare, assistance, protection or information to vulnerable citizens. Through collaboration with government, legal aid, the private legal profession and community partners, CAOs can enhance the delivery of beneficial outcomes for their clients, the justice system and society as a whole. The broader social benefit of CAOs lies in their contribution to:

• Individuals; • Communities; • Public, private and civil society actors; • Economic growth; • Rule of law, democracy and human rights promotion and advancement; • General social good.

According to Advocate Odayan, Nadcao should develop a sustainability model in which the CAO sector can remain viable over the long-term through a range of funding and support partnerships within an integrated justice system. The model should motivate CAOs to obtain combined support and funding from within the local community, external donors (including the private sector) and through cooperation agreements with government departments. However, CAOs also require institutional support to remain sustainable. This includes support in the form of legal supervision, organisational development, governance, financial management and capacity building. Advocate Odayan suggested that the institutional support model should be extended beyond pure financial support. The sustainability model

16 should allow the CAO to remain an independent community entity while being a service provider to a range of stakeholders, including government departments. Advocate Odayan pleaded for the creation of a dedicated Community Advice Office Development Fund for the long-term sustainability of the CAO sector, which would offer a number of opportunities, such as:

• Alignment of common donor objectives for improvement of communities, access to justice and building civil society into a single funding mechanism; • Creation of a fund specifically aimed at addressing the unique funding needs and requirements of CAOs; • Pooling of resources, administration and monitoring processes; • Simplified funding application and reporting process for CAOs.

Advocate Odayan is convinced that a regulatory environment will underpin the significance of the CAO sector and assure donors of greater accountably. She suggests the sector amplifies its efforts for state recognition, national standards for overall governance and impact indicators. “If you receive greater investment, in reciprocity you will have to continuously increase your accountability and self-reliance”, she summarizes. “You have the power to shape the environment that belongs to you. Take what is offered thus far, make it yours and rather than demanding resources, become the preacher of the value that you bring to sector.”

The Profile and Positioning of the Community Advice Office Sector in South Africa Ms Carol Friedman, Centre for Community Justice and Development

The ‘Profile and Positioning of the Community Advice Office Sector in South Africa’ research was commissioned by Nadcao with the aim to better understand the value and impact of the work of CAOs and the sector’s capability to effect social change through access to justice for marginalised communities. The research was qualitative in nature and carried out in June and August 2014 at eight Advice Offices in four provinces (Gauteng, Kwa-Zulu Natal, Limpopo and Mpumalanga). At each site, in-depth interviews were carried out with key individuals working with, or in cooperation with, the CAO. These included paralegals, management committee members (or board members), and stakeholders from sectors such as SAPS, the courts, the Department of Health, the Department of Justice, youth organisations, and others. Seven focus groups and 63 individual interviews were held with community members who had been involved in public education events of the CAO and clients being served by the CAO.

The research findings confirmed the value and impact of the participating CAOs in the communities in which they operate under severe constraints. The paralegals apply a wealth of legal and practical expertise, skills, experience, and resourcefulness in assisting people with a wide range of complex issues. The

17 Report of First National Symposium on the Community Advice Office 24-25 November 2014 methods of restorative justice (including mediation, negotiation, victim empowerment and reparation) applied by the CAOs effectively resolve disputes while at the same time restoring relationships and bypassing the courts. Referrals and educational events organised by the CAOs connect communities to knowledge, information and stakeholders who can assist them to access justice. The CAOs tenaciousness in tracking down money owed to community members has resulted in them recovering resources for their clients.1 Paired with the care and respect they demonstrate towards their clients, the creativity and innovation they apply in dealing with each unique case, and the trust and esteem they hold in the community, the CAOs carry a great deal of authority to affect social change.

The strengths of the CAOs are firmly located in the paralegals, who devote themselves to assisting the communities in whatever way possible. Most of the challenges identified by the research are a result of a lack of funding and thus to a certain extent beyond the control of individual advice offices. The study recommends exploring sustainable strategies of income generation, with private and state support being key. The survival of the sector depends on sustained and proper payment of the paralegals, which is an issue that should be addressed urgently. Another recommendation is the accreditation of basic paralegal training programmes in order to address the different levels of legal and technical competency across the CAOs. Further assistance is required in the areas of setting up an efficient computer-based system for recording cases, computer literacy training and administration and financial management training. The formation of CAOs in regional clusters could assist in pooling resources and expertise in areas such as fundraising, capacity building and training. Furthermore, CAOs and the sector as a whole should publicise the work they do and share their knowledge locally and internationally. The establishment of an ethics board for the CAO sector will be helpful in supporting the sector’s call for recognition.

Towards a Sustainable and Effective CAO sector in South Africa: A Cost Benefit and Qualitative Analysis Dr Derek Davids and Len Verwey, Human Sciences Research Council (HSRC)

The cost benefit and qualitative analysis carried out by the HSRC was commissioned by the Technical Support & Dialogue Platform (TSDP), a project of SGS Consulting in partnership with the National Alliance for the Development of Community Advice Offices (Nadcao). Derek Davids and Len Verwey presented the main findings and recommendations of the research.

The South African government, in terms of the Constitution has an obligation to ensure access to justice for all citizens, as a basic human right. However, many communities, and particularly rural communities,

1 Between 2013 and mid-2014, the CAOs covered by the research study recovered over 4 million rand for their clients. Monies recovered include maintenance, government grants or support, pension and provident funds, death benefits, funeral expenses, stokvel, credit collections/debt, and disputes between individuals and labour related issues. 18 do not have access to legal advice as a result of costs involved, ignorance of the existence of state equivalent centres, a fear of engaging the legal aid system and the distances people have to travel to get to government legal centres. Many potential social service beneficiaries are also unaware of their eligibility for social benefits, or are daunted by the administrative requirements involved in applying for them. These barriers furthermore are strongly associated with poverty, location, gender and education levels.

South Africa has a community-based CAO sector, which goes back to the 1980s. The CAOs provide first stop or ‘early action’ paralegal services as well as a range of other advice and assistance functions. However, the sector is ailing, primarily as the result of financing challenges. The objective of the study carried out by the Human Sciences Research Council (HSRC) was accordingly to provide credible, evidence-based arguments to inform the policy debate around public funding of CAOs in South Africa.

The research methodology included a desk-based review, a fieldwork-based qualitative and quantitative analysis and a cost-benefit analysis, which considers the economic argument in favour of core funding to CAOs, by the government of South Africa.

The desktop review conceptualises CAOs as small, non-profit organisations that offer free basic legal and human rights information, advice and services to people who are marginalised through poverty, social circumstances and geographical location. They are non-partisan and non–political in their operation. CAOs deliver their services with limited funding, where necessary by pooling community resources and staff labour and time capacity.

Some challenges CAOs face may be regarded as inherent to the scope of their potential functions and the complexity of community needs they seek to respond to. Others, however, are rooted in structural dynamics, which are in principle addressable. In the literature the challenge of funding appears as the main challenge which plagues the CAO sector currently. Other challenges include the absence of formal regulation, service standardisation, adequate acknowledgement, and, as a result, uneven service provision in some instances.

The funding challenge generates a range of problems for the sustainability of the sector, many of which relate to human resource capacity, including the inability of the sector to retain staff once they have received some basic training and work experience in the community context.

The fieldwork took place in mid-2014 and was conducted in five provinces (Eastern Cape, Free State, Gauteng, Limpopo and the Western Cape). In total, 18 CAOs and 83 staff members participated in the research. Additionally, 186 beneficiary interviews were carried out. The results of this fieldwork fed into

19 Report of First National Symposium on the Community Advice Office 24-25 November 2014 the cost-benefit analysis, but have considerable additional worth as a rich picture into the nature of the sector and its users currently. The fieldwork findings are summarized below:

A service and asset to the community  Estimates of the number of CAOs by province are complicated by a number of factors, but CAO numbers range from 22 to 65 for the provinces included in the study.  Almost half of CAO offices (47% or 9 of the 19 offices) describe themselves as becoming operational in the 2000’s.  Virtually all the offices included in the field work reported being fully functional/ operational, that is they are open from Monday to Friday during normal work hours, and typically also make themselves available to working overtime including working after hours and on weekends.  Beneficiaries served per day vary between CAOs and at different times, but may average around 10 per day.  The community challenges identified by CAOs are largely aligned with those identified in the NDP as well as surveys such as the HSRC’s SASAS.  CAOs respond to community need as well as programmatic funding opportunities and their core paralegal function to deliver a wide-ranging, flexible and locally responsive mix of services.  CAO’s generally feel that they are able to meet the needs of their communities, notwithstanding a range of challenges, though formal case monitoring is not effectively implemented.  CAOs have different conceptions of their primary and secondary functions, which depends in part on funding opportunities.  Asked after specific successes achieved by their CAOs, staff and provincial fora representatives give a picture of the varied and valuable contribution CAOs make to community wellbeing.

Resources & challenges  The primary challenge identified by the overwhelming majority of CAOs is a lack of funding, and many other challenges, such as staff retention, ultimately emanate from this challenge.  Secondary challenges identified suggest the complex stakeholder relations CAOs must negotiate and, in some instances, a non-optimal relationship with sub-national government and municipalities in particular.  CAOs face human resource challenges related to staff retention, skills required for the job etc., but display a strong resilience with regards to doing what can be done, including referral.  Few if any CAOs have the required material resources to fully fulfil their functions.

20  CAOs use a variety of office spaces, some of which are adequate, many of which are not.

Organisational structures  CAOs for the most part have a clear and sound leadership and management structure, though implementation lags and the role of the Board in particular could be enhanced.  The newly established coordination and integration model of Provincial Fora and Provincial Hub Offices has significant potential for strengthening the sector, though it is uncertain about the extent to which the hub model has been deployed in all provinces.  CAOs make use of both staff and volunteers.  Many CAOs report good relations with government departments, but adversarial relations also exist and inhibit community welfare.  In all CAOs, some form of financial management system is in place, but these differ in degrees of formality.

Accessibility  The accessibility of CAOs for communities varies and imposes differing costs on beneficiaries as well as the CAOs themselves.

Funding  CAO funding is generally inadequate to conduct operations effectively; virtually no CAOs operate with a funding amount that allows them to fully do their work.  The funding picture differs across province, both in terms of adequacy and typical funding sources.  Fundamental consequences of the funding context include precarious security of premises, self-exploitation, volunteerism, and a reliance on community resources, which are in short supply.  Even CAOs that appear to do comparatively well struggle with secure, predictable funding which would enable medium- and longer term planning.  CAOs that have comparatively secure and adequate funding tend to have this funding for other uses than paralegal related services; in other words, even in these instances their paralegal work is likely to be underfunded.

The Service Beneficiary Survey found that the largest proportion of respondents (users of the CAO services) had some secondary education (38%) followed closely by 34% of respondents who reported having no education, some primary education or having completed their primary education. The majority of respondents (48%) fall within the R1001-R3000 per month income category. The smallest proportion of respondents (18%) reported earning more than R3000 per month. Over a third of respondents (40%) highlighted assistance with legal cases or labour disputes as the main reason for their visit.

21 Report of First National Symposium on the Community Advice Office 24-25 November 2014 The survey revealed that most CAO beneficiaries have been using their respective CAOs for a period greater than one month but less than six months. The data also illustrate that communities utilise the services of CAOs frequently. A large proportion of respondents indicated that they visit the respective CAOs in their community twice or more than twice a month. However, the data also showed that most of the CAO users visit the CAO more than once for the same issue or inquiry. The evidence from the other data sources suggests that the complexity of some of the cases dealt with by CAOs requires more than one visit by beneficiaries. Additionally, cases the CAOs deal with most often involve government departments. This may delay the process depending on the nature of the case and the government department and the processes involved.

When asked about their satisfaction with CAOs services concerning their helpfulness, professionalism and level of knowledge about the services offered, an overwhelming majority of respondents (96%) indicated that they were very satisfied with the helpfulness of CAO staff. None of the 186 survey participants indicated that they experienced or witnessed any of the CAO staff members receiving or being paid a bribe.

22 Possible Scenarios in the Absence of the CAO

Reasons why Beneficiaries would not consult Government for Assistance Travel Duration to Obtain Services CAO vs. Government Office Percentage 44.2 35.1

2.6 1.3

The I dont know The transport Other I have to pay government which cost and the for the service is not government time it takes government good enough office to go to to get there service and it and back is is too too much expensive The survey also included questions to ascertain respondent’s knowledge about the availability of alternatives in the event that the CAO did not exist. Respondents were asked what they would do about their issue if the CAO were not there. About 52% indicated that they would go to a government office with their issue. Where respondents indicated that they would not consult government for assistance, their reasons typically have less to do with affordability and more with their perceptions of government services. The findings suggest that beneficiaries perceive government services as inferior - 44% who indicated that they would not consult government gave as a reason that its services were not good enough. However, lack of knowledge of who to consult for assistance appears to also be a reason.

A cost-benefit analysis (CBA) provides an evaluation of the value of a project by adding up all relevant social costs and benefits. A project that has a positive net value is a viable project, in the sense that it is worth the money spent on it. In the case of CAOs, the HSRC tried to establish whether public funding of CAOs would be worth it for the state and its citizens. The HSRC first determined costs for a stylized, representative CAO (consisting of an Office Manager, two paralegals/Programme Coordinators and an administrator). The Annual Budget for such a CAO, as used to inform the CBA, is shown below.

Box 3 – Annual Budget of Representative CAO

The HSRC ran the CBA for CAOs using an annual budget of R 500,000.00 per CAO, as well as a ‘low cost’ scenario where half this amount, R 250,000.00, was provided as core funding (assuming that service output remains constant in both scenarios).2 The CBA was customized to align with the context of CAOs and the methodological challenges this presents.3 Benefits were conceptualized as benefits to individual service users, positive externality community benefits, and benefits to the state as a result of a reduced demand burden on state equivalent services.4 The HSRC retained conservative estimates in order to provide what it regards as ‘highly robust results’.

2 The lower cost scenario assumes that some degree of involuntary volunteerism remains. 3 The valuation of benefits is complicated because of the wide range of CAO services offered, and the differing nature of the service portfolio in different CAOs. The HSRC hence used a contingent valuation willingness to pay (WTP) approach to CAO users. The main model asks after the annual contribution users would make for the CAO in its entirety, if not making such a contribution meant the CAO would not be available to them. A secondary model asks users how much they would be willing to pay for the particular service they received on that day and generates annual benefits from this response. 4 Government benefits were understood as savings to government as a result of CAOs providing equivalent services, thus reducing service demand volume on government. Volumes were determined by looking at the reason CAO users came to the CAO, and simplifying these responses into four categories. To calculate volume increase implications for government we only included CAO users who indicated they would go to a government equivalent if the CAO did not exist. Unit costs were estimated by obtaining relevant proxy unit costs for selected services offered by: Legal Aid South Africa, a provincial Department of Social Development, the 2014 Budget Review for social grant administrative costs and the Department of Home affairs. As net value was generated for two idealized CAOs with different cost implications, the models present a wide range of results. To ensure the sustainability of the sector, a R 200,000.00 annual CAO funding amount from the state would return a strong social net value and would thus be strongly defendable, according to the HSRC. Such an annual amount would give a positive net value for most of the models considered. A positive net value is returned even in a low benefit scenario where state benefits are excluded. In the main model, which includes state benefits, the net value nationally of R 200,000.00 core-funding would be between R 44,904,004.00 and R 85,329,114.00 annually.5 This model can be adjusted to provide for an initial, once-off capital funding pool to be distributed to selected CAOs, in order to achieve a basic service standardization across the sector as regards material resource and other service infrastructure. A capital pool of R 40,120,000.00, in addition to the core funding outlays, would continue to generate high net value in most scenarios.

Based on the above-mentioned findings, the HSRC recommends the following:

To the South African government:

 Serious and urgent consideration should be given to the fiscal funding of 236 CAOs in South Africa, for an initial annual core funding amount of at least R 200 000 per CAO.

 In the wake of such funding, oversight of CAOs would need to be located in an appropriate provincial department, such as the Department Performance Monitoring and Evaluation (DPME) or through the aegis of an entity such as the NDA.

 Although state oversight of CAOs is a necessary adjunct to their public funding, care needs to be taken to avoid excessively onerous reporting requirements and excessive attempts to ‘standardize’ CAO operations in order to facilitate their monitoring and evaluation.

 It is important that CAOs remain independent non-profit organizations, and that the state perceives them as such, rather than coming to be seen as delivery entities for state paralegal services in poorer communities. Independence does not mean independence from oversight of work funded through the fiscus, but does mean a significant degree of independence in setting annual objectives and in the broader mission of the CAO.

 Public recognition of the sector needs to be enhanced at a national level and sub-national jurisdictions need to consider the work of CAOs for what it is: an indispensable means of

5 As the HSRC points out, this is a very small amount in relation to the scope of budgetary allocations: in 2014/15, it would amount to 0.004 of total allocated expenditure of consolidated government. delivering paralegal and related services in contexts where governments often struggle to do so, and a highly useful resource for information-gathering at a community level.

To the CAO sector:

 CAOs will have to intensify the current self-initiated drive towards coordination, some further degree of standardization, and will have to ensure that their structures are adequate to the tasks that lie ahead.

 CAOs, with the support of Nadcao and the Provincial Fora, need to ensure that their boards function effectively and that the right people are elected to such boards. CAOs should also consider including representatives from government on their boards, and in particular from the municipalities in which they operate, in order to build stronger partnerships.

 An important challenge that CAOs will have to address concerns the current absence, in almost all CAOs, of any effective system of case management, from which some evaluation of impact, and of community service demand, can be established. The establishment and maintenance of such a system should be insisted on by Nadcao, for CAOs affiliated to it, and should also constitute a condition for receiving public funds.

Question from Legal Wise: “This is an extremely interesting study, but the focus is on looking for support from the National Treasury. If the communities themselves would pay for this R 200 000, did you look at what the cost would be per household? I don’t believe in labelling the community as passive recipients of services and thinking they don’t have anything to contribute. Can we look at funding coming from both the National Treasury and the community? Does one stakeholder have to provide everything?”

HSRC answer: “Talking about individual contributions is an interesting point. The issue with these kinds of studies is that in effect we asked individuals how much they would pay for the service, but we did not actually require them to pay it, we were trying to establish the value. Beyond that, it’s a political economy debate as to what the state should provide and what the community should pay for. Access to justice should be the responsibility of the state. If you ask me, I’d say the fiscus should fund it.”

Question from the audience: “I think this cost analysis is interesting, but when you go deeply into the breakdown it gives a different picture. An indication was made that a reasonable starting amount of R500,000.00 would be necessary to cover the costs. Some lazy government officials that give only a little bit of service to our community are actually receiving twice that amount. This R 200,000.00 core-funding, it’s a drop in the ocean.” HSRC answer: “The budget provided is illustrative. It’s stylized and representative. What we wanted to do is to provide an amount that is beyond any doubt generating a significant value. Cost benefit analyses are always tricky. When you go into something like this, you have to be clear about your assumptions and be conservative in all your estimates. If it were up to me, the amount could be doubled and you would still have a positive cost-benefit ratio, but to have no weaknesses in the research methodology, we stayed with the recommendation of R 200,000.00. There is no doubt that this is a very reasonable amount to ask for. It is however not a prescription of what I think CAOs should receive.”

Question from the audience: “Is there an update on the conversation with the National Treasury?”

HSRC answer: “The National Treasury is waiting on us to get back to them. The CBA has to go through a final reference group check. We will then make it broadly available. National Treasury has asked us to get back to them so they can discuss it. We will have to take the research to other key partners within the sector and down into the CAOs. We have to get this going in the first quarter of next year and target the 2016/’17 government budget.”

Question from the audience: “Have you considered the possibility of self-regulating for the CAO sector? It will be difficult for people that don’t understand sector to do the oversight. If self-regulation can happen, how can it happen?”

HSRC answer: “I don’t think we can be prescriptive. If the National Treasury is going to give money they will want to play a major role in regulating the sector. You should debate what specific role you will play. In terms of sustainability and future funding purposes the sector needs to be regulated. It will depend on how swiftly you have enabling legislation for the sector; this could determine what internal governance could look like. In the consultations it’s going to be really important that ACAOSA and Nadcao think about what model for oversight they want, assuming self-regulation will be accepted.”

Recognition of CAOs and the Regulation of CBPs Facilitated by Kate Tissington, Socio-Economic Rights Institute of South Africa (SERI) Ms Janet Love, Legal Resources Centre

“For me, the key question is around regulation and recognition. The Legal Practice Act itself is not really the hard part. The hard part is knowing what you want the act to say in ordinary English. You want the recognition of what skills? Just the legal skills? Those are not so unique. Community organisation skills? That’s starting to get more unique. Activist skills? A few decades ago those wouldn’t have been so unique but today they are getting as rare as a diamond. What basket of skills do you bring to the table? If you only focus on the legal aspect you may lose the real heart of what it is you do as a centre of community. What the CAOs do means way more.”

“My second point revolves around how the work of the CAOs gets recognised and accredited. In this room today, we have people who have been working in community advice work for decades. Maybe next year some fantastic youngster who has finished matric and a two-year paralegal course joins you at the CAO. Who knows more? Is it you or the person who has the distinction? It’s about learned experience! If that’s not part of what you see as being recognised in legislation you’ll be cracking your skulls later on for prior learning to be an add on. A community-based paralegal has to have a level of understanding of the real issues, bring substantial emotional intelligence and be able to get through to the community. It’s not a simple thing. Recognition should not just be about a piece of paper.”

“We want experienced community-based paralegals and CAO staff to get support from government and agencies rather than the charlatan crowd. I ask again: what kind of recognition do we want look at? There are certain areas that are clearly part of legal structures, but there is also mediation, counselling structures, such as debt counselling. Do we want recognition for that? It doesn’t mean everyone at any given CAO has to offer all these services, but it may mean that the way in which we call for recognition makes a distinction, so that we know amongst ourselves where our expertise lies - not just for the sake of our clients but so that we can refer amongst ourselves and recognize our own expertise.”

“This brings me to the third issue. Recognition has to come within a framework of understanding that what we learn today is not static. There has to be a process for on-going learning and it needs to fit somewhere within career paths. When we raised the issue in the context of the Legal Practice Act there was a notion that recognition was only speaking to the legal aspect of your work. That is not accurate. You provide information about government services, mediation, counselling activities, etc. These are part of your daily routine. When we talk about on-going learning, we need to decide in what professional context we fit.” “Recognition goes way beyond just a piece of legislation. Recognition can only happen meaningfully if we think through these questions. It is important for the CAO sector not only to know what their niche is, but also how it protects itself and its clients. Not everyone working for a CAO has the same understanding of what the work entails. What are the consequences for recognition?”

“ CAO staff needs to receive some income, just as anyone working in the public service sector. That payment does not derive from a client paying fees. There are people who look at the CAO sector and think it can or should be based on a fee basis. This is a no-go area. This is a distinction we need to make absolutely clear at all times, for lots of reasons. The key reasons is that when you charge client fees you have to look into all kinds of liability issues, legal insurance issues and law society related issues. This is okay for people with a legal qualification who charge quite legitimately but also know that they have to insure themselves against the risk of bad advice. Does that mean as CAOs we don’t care if we give bad advice? No. But if we accept that the kind of CAO that we talk about has no legal fidelity type of obligations then we still have to see how to protect ourselves - and more importantly, our clients – from giving bad advice.”

“For example, let’s take the issue of housing. It may be clear to CAOs – although it is not always clear to government - that to be served with an eviction order because you don’t pay rent is not legal. Now we would need to know exactly to what extent such a particular case repeats a pattern that has played out in our cities … It is really very difficult for us to know if we haven’t been keeping up to date with the detail of the case work. If we talk to our client as if they have to go through all the channels again, to paint a battle for the client that has never really been fought and won, that could be a disservice. We have to protect clients form that disservice. It speaks to the complexity of where we fit in as the CAO sector. When you look at the qualified legal profession it’s their business to keep up with the law, with precedent setting and the changing nature of the law. How does this apply to the CAO sector? This is a question that we have to answer for ourselves. We can use experience from other countries, but we won’t find all answers.”

“I would be eager to hear from you how you respond to these issues. Are there even more vital issues?”

Adv. Mathole Motshekga, Portfolio Committee on Justice & Correctional Services, Parliament of South Africa

“ I am about to retire so I am consoled by this invitation, fellow travellers. I only joined the portfolio committee last year, when the sessions on the Legal Practice Act were about to be closed. The first thing that disappointed me about the act was that it didn’t deal with the CAO sector. I was assured there would be another process to deal with it. When I became chair this year, I had the privilege of dealing with the Legal Practice Act. I looked at it and found out it was really about restructuring Legal Aid South Africa, the only new thing was that it will cater for legal advice, education and assistance. That was not enough for me. I felt I had to draw around my weight and see that something gets done about this. There was no opposition to the weird ideas that I came with, but I was still defeated because I was told we need another process. I agreed on the condition that the minister would support my speech in parliament, where I would plead for the need to do something urgently. I don’t think there will be any resistance in parliament in moving forward on these issues with speed. The work you are doing is important partially because the legal practice has become so commercialized, it’s no longer about people but about how much the practitioner can benefit. Of course we have a pro bono scheme but given the size of the problems in this country, we cannot resolve the issues only through a pro bono scheme. We need something radical. You are the people who can do something radical.”

“For the past twenty years we have been trying to transform the legal profession but the focus was on transferring structures. We did not speak about the content of the legal system itself. Our law is based on Roman Dutch law and English Common Law. Our constitution also recognises indigenous African law but we still call it customary law. Lawyers will argue that in essence they are the same. It is not the same. The lawyers we have nowadays were not forced to study indigenous law or African languages. If legal practitioners don’t have that knowledge then how can these systems be the same? This is already an impediment to access to justice. There is a gap between the law and the people. But CAOs work amongst the people so they are in a better position to know what the community’s sense of justice is. That must be infused into the laws of this country. It will make our constitution relevant. I really believe that the recognition of your profession and the support to the profession by government will make sure that the infusion of community values into the legal system is speeded up. Today we are talking about Ubuntu principles, but that is optional, it just depends on which judge is sympathetic to Ubuntu. I don’t think that should be the case.”

“ We also have to look at the current situation where the majority of our population is youth. The population in our prisons is mainly constituted of youth. There is a lot of recycling going on and not so much reintegration. In the next fifty years who is going to run this country? I want to suggest that what we need to do is not only to recognise you as a sector but also identify projects that can be carried out by the CAOs and government together. For instance we could develop a programme to deal with rehabilitation and social integration of offenders.”

“I also think that it is not enough to say we are already using paralegals within Legal Aid South Africa. We must distinguish between them and those that are community based and the emphasis should be on the latter. Why should we as government make a budget available to commercial lawyers and not to CAOs? The majority of people who want advice are those who cannot read or write or travel to the towns. I know the constitution says criminals must have legal representation but criminal cases should not get precedence over civil matters. When people come and kill and do all the damage to communities, those are then the ones who are supported. For the victims who may want to bring civil cases the perception is created that this law and constitution protects criminals and not the people. This can delegitimise the system. The law should protect law abiding citizens.”

“ With regards to the implementation of the Legal Practice Bill, I want to warn you that it will be progressive. Don’t pin too many hopes on this bill. I’ve never been impressed by the attitude of my colleagues to change. Rely on yourselves, let’s speed up this process of recognition and move forward. I am just waiting to see this bill pass in parliament. I will not sleep before it goes through and then I can take off my jacket. We will facilitate some social dialogue and we want you to be our number one partner. The priority next year is going to be this sector.”

Ms Dilshaad Gani, Legal Education & Development of the Law Society South Africa (LLSALEAD)

“Talking from my own experience there is a dire need for CAOs. They provide a service that is sorely needed. Access to justice is one of the highest priorities in South Africa. In addition to that, the CAOs also provide social function. All relevant stakeholders must support the community advice offices: the Department of Social Development, the Department of Labour, the compensation commissioner, the family advocate officers, the attorneys’ profession, etc. Ideally this support should create opportunities to share skills, knowledge and training where required.”

“I am of the opinion that every advocate has to do a certain amount of pro bono work. It is an option that must be investigated by both actors. CAOs referrals to LASA, law clinics and private attorneys cannot be prevented. At their turn they will refer to CAOs, for work we cannot do or do not have time for. And because CAOs are more competent at certain matters.”

“Should the CAO sector be regulated? Yes. By regulating the sector things like ethical behaviour can be monitored. Regulation will ensure standards are maintained, it will ensure the quality of services is the best under the given circumstances. The best interest and the protection of clients and the public will remain a priority. Charging a fee will negatively affect the fundamental nature of CAOs; they have always been there for the indigent. It’s very important to enhance and strengthen the image of the CAO sector to influence public perception. Marketing of the CAO function is important; the umbrella body must not neglect it.”

Question from the audience (North West province): “The Legal Resource Centre doesn’t service CAOs like it used to do in the past. Where has the partnership gone wrong?”

Answer from Janet Love: “After Pinkies’ (former director) death we were left with a gap that was very difficult to fill. At the moment we do still provide some training sessions for CAOs but it sounds to me that the CAOs that Pinkie was very close with have been left off the invite list. She kept her own systems, which we have not been able to access. Maybe with your agreement we can update the invite list through Nadcao’s offices?”

Question from Nadcao’s chairperson of the board: “We heard there is a greater role for CAOs in terms of promoting indigenous knowledge and the implementation of restorative justice. Could you enlighten us on the status of the Traditional Courts Bill?”

Answer from Adv. Mathole Motshekga: “The Traditional Courts Bill is not on the agenda of parliament. There were lots of disagreements. We’ve insisted it must come back onto the agenda. My personal opinion is that unfortunately, the majority of the people who talk about it know nothing about those structures. Their argument in another sense is valid though: women in some instances are not allowed to participate. That forces me to take the view that you can’t implement the Traditional Courts Bill without at the same time transforming the Traditional Councils. There must be at least 40% of women on those councils as active members. With regards to restorative justice, this is influenced by indigenous culture and jurisprudence but some people are pushing to westernize it. Restorative Justice, the way it is understood by the community, must be recognised and mainstreamed. When a person is accused everyone is a lawyer and a prosecutor. The idea is to find out what the truth is, not who can tell the best story assisted by a well- paid educated person. We need to look at whole legal system, that’s where you’ll find a niche for yourself that no one will resist paying for.”

Question from the audience (Eastern Cape Province): “My concern is about charging fees for our work or asking for a contribution. It is by law that we register as NPOs so I fail to understand why we argue about us charging?”

Answer from Adv. Mathole Motshekga: “When you are an NPO it does not mean you cannot charge for your services. It means that the fees you receive should cover your costs; you cannot make a profit from it. I agree that it would be problematic to charge a fee though, for various reasons. So if you do not charge you will need to be funded. If LASA says there’s a need to employ and pay paralegals in their offices and they accept that their offices alone cannot reach out to majority of the people in this country, then some arrangement has to be made to fund CAOs. There are about 300 CAOs in the country. Really, funding should not be difficult to do.”

Answer from Janet Love: “With regards to funds, the state needs to come to the party. But be careful, is it only the state? There is the Law Society. The work that you do already and ought more to feed into the work of the actual legal services provided by attorneys. Ask the Law Society what percentage of their fees they could contribute to you? To what extent the profession itself support you? However, make sure you are able to deal with the bureaucracy that receiving funding can lead to. You should continue to be owned by the community as much as by the other institutions that contribute. The real issue about charging for your services is that there is a certain ethic that charging will easily undermine. It gets you to a point where your motor force is about the fee that you charge. We need to be careful with that.”

Question from the audience (Orange Farm Advice Office): “We have a good working relationship with pro bono legal aid dealing with cases but some cases are so complicated that we don’t know how to help our clients that are rejected. Especially with regards to housing matters. When we brought a client to a pro bono lawyer for assistance with the transfer of title deeds, the municipality valued old apartheid houses to the amount of R 300,000.00.”

Answer from Janet Love: “With regards to the complexity of certain cases, you will find that some of them you can refer. However, sometimes what we are grappling with is not a case but an instance where a new law needs to be developed. In terms of the Legal Practice Act that you are trying to influence, that we are going to draft together, when it is passed the legislature will have an obligation to listen to you. Local authorities pretend they don’t know. There should be a law of national implementation, cadastral services, leasing, etc. The legislature has to be mandated somehow. With regards to customary practice it is important that whatever we develop in terms of new legislation is coming from the community, whether we want to call it community practice or indigenous law. We shouldn’t create Chinese walls. We shouldn’t promote practices that are written down in history books, it is about what is being practiced today and what is practiced today must be legal – you will be part of making this transition. People like you are able to shift actual practice within communities in a manner that sits right with our constitution. Hopefully that will also be a role that you will play.”

Post 2015 Sustainable Development Goals Open Society Foundation Ms Nathalie Jaynes, “I am here today to talk about justice and its relationship to the sustainable development goals (SDGs). I am unashamedly in support of pushing very hard for justice to be included as part of the post-2015 sustainable development goals. This bias is thankfully shared by the organisation that I work for: the Open Society Foundations.”

“My presentation today will focus on two questions, namely, why should ‘justice’ be included as part of the post-2015 SDGs and how can this actually be done? Before I jump into these two questions, I want to give an update in terms of where the post-2015 process currently stands. The sustainable development goals are, in large part, an effort to fix the mistakes of the millennium development goals (MDGs). A key critique of the MDGs was that they were agreed in smoke-filled rooms and were not the result of a sufficiently inclusive and consultative process. While the reality may be more complex, the point remains that developing countries were not brought in at the start of the millennium and, in places, the development agenda was weak because countries were not on board, there was not sufficient ownership of the Millennium Development Goals.”

“Fortunately the process of generating the Sustainable Development Goals has been far more inclusive. This process has seen extensive global consultation and negotiation, meaning that ownership and buy-in should be far less problematic this time around. The drive for inclusivity has also meant that what is currently on the table is rather long document though: 20 pages long with 17 goals and 169 targets. It’s a great document, but understandably so the critique is that it’s just too long and not practical. Some countries, like the UK, are pushing for the list to be reduced. South Africa has not joined that line of thinking, and I would say correctly so.”

Box 4 – Sustainable Development Goal 16

“If the list is to be reduced there is significant risk that key controversial wins – such as justice – will be discarded. My sense is that this is a risk that we don’t want to take. Justice needs to be there, and the current language cannot be watered down. The final decision on the SDGs will be taken in September 2015.”

“Why do we at the Open Society Foundation think keeping SDG 16 is so important, and how do we think this is possible? The two most compelling reasons from my perspective are the following. First of all, there is a growing body of evidence that tells us that better access to justice leads to better health, education and other development outcomes. The 2011 World Development Report made huge in-roads by making the case that addressing injustice and insecurity is fundamental to poverty reduction. Since 2011, evidence of the links between justice and development has expanded. A recent study by the legal empowerment organisation Namati compiles nearly two hundred case studies of access to justice and social accountability programs. The findings are striking. When government and civil society groups support people to understand and claim their legal rights, development processes are not only more inclusive and equitable; they also drive better health, and stronger educational outcomes. There are stories from Bangladesh to Uganda – of community advice office type structures assisting local communities to claim their rights, and this in turn leading to better development outcomes. The links between justice and development are now taken as a given. In short, we now understand that justice and governance are no less important to equitable and sustainable development than good schools, functioning health clinics, and passable roads.”

“The second reason why access to justice matters, particularly in the South African context, is because there is an ethical imperative for justice and development to be seen as two sides of the same coin. This is one of the clearest lessons that came out of the Truth and Reconciliation Commission experience, and has been re-affirmed as we have reckoned with Marikana. We cannot talk about legal empowerment and access to justice, without also looking at socio-economic justice.”

“ Based on this knowledge and the ethical imperative, how concretely do we integrate justice in the development agenda? Firstly, it’s important to be honest and acknowledge that we are not starting from scratch in South Africa. In many ways, South Africa already has the policy and legislative scaffolding necessary – the example that is often cited in international circles is the National Development Plan (NDP) and the 2030 commitments to: “realise a developmental, capable and ethical state that treats citizens with dignity” and to “ensure that all people live safely, with an independent and fair criminal justice system.” I deliberately referred to this as ‘scaffolding’ as the NDP is not enough, and neither are the raft of existing legislative and policy imperatives.”

Figure 5 – Five elements of ‘justice as development’

“The UN Secretary General’s High Level Panel and others have offered suggestions for potential targets in the new development framework. These targets are contained in a statement developed by over 200 civil society organizations, including the Open Society Foundations, from fifty countries (see figure 5) and endorsed by the South African government.”

“The five ‘elements of justice for development’ constitute much of what is already happening within the CAO sector. Now, one of the biggest critiques against a justice goal is the challenge of measuring. How to measure increased access to justice? A lot of it is actually common sense (see box 6 for an example) and you are already doing some of this at your offices.”

Box 6 – Measurement indicators for ‘access to legal services’

Administrative data Situation data Perception data

% Of population who live within Average time to resolve % Confidence in justice reasonable reach of affordable and criminal case; Average systems & confidence in INDICATeffective basic legal service time to resolve civil case accessing affordable and ORS providers and of a justice effective legal services institution whose resolutions are fair, timely, and enforced

“ As CAOs you are sitting on a gold mine of information which will become increasingly valuable if justice makes it into the final list of Sustainable Development Goals for the period of 2015-2030. If this happens, then the South African government is obliged to report on what we are doing in terms of access to justice. Some of it will be basic information. However, some of the information will have to come from you. No one else really has it. So this can be an important way of elevating your voices and experiences of what you do on a day-to-day basis and should link with other efforts for recognition.”

Plenary

The levels of the current investment in the work of CAOs Facilitated by Shaun Samuels

Panel: Ms Vuyiswa Sidzumo (CS Mott Foundation) Mr Malibongwe Puzi (Foundation for Human Rights) Mr Dugan Fraser (Raith Foundation) Ms Leonie Sampson (DG Murray Trust)

Shaun Samuels: “From the standpoint of your respective organisation, what strikes you as a key value proposition of the CAO sector? What makes you believe that the sector is worthy of investment?

Ms Vuyiswa Sidzumo (CS Mott Foundation): “For the CS Mott Foundation, what stands out is the accessibility of the CAOs. I am always amazed when I go to communities and talk to CAO staff, for example in farming communities, and I see how marginalised and brutalized this sector of society is. For many of these people if it wasn’t for the CAO (at least in those areas where there are CAOs, because many communities don’t even have this support), people would not have any access to justice or services. If you see how the changes impact directly on people’s lives. Democracy is about all of us accessing our rights. However, this is not happening in the same ways all of the time. If it were up to me there would be a CAO in every community. The fact that there are currently only 300 CAOs in South Africa is a challenge. I would love to see the sector expand.”

Ms Leonie Sampson (DG Murray Trust): “As the DG Murray Trust we came into contact with the CAO sector by default. We were supporting a process aimed at reducing Gender Based Violence (GBV) and the reports that were send to us showed how many people accessed the services that CAOs were providing. We realized that the services that CAOs provide cover all our interest groups. It’s a one stop shop for service provision.”

Mr Malibongwe Puzi (Foundation for Human Rights): “Everyone can see what CAOs are doing. Their value lies in opening up opportunities for marginalised people.”

Mr Dugan Fraser (Raith Foundation): “The Raith Foundation believes that South Africa is a deeply unfair society as a consequence of a history of apartheid and racism. People have to face a systemic and structural situation that prevents them from experiencing social justice. We aim to make this place a little more socially just. One of the major things that causes the injustice is that people don’t know what their rights are. And even when they do know their rights they can’t enjoy or access them. The CAOs are a really powerful and amazing tool that allows ordinary people to gain access to their rights. We don’t fund individual CAOs but we fund Nadcao and we see this as an investment in changing systems and structures that make South Africa so unfair.”

Shaun Samuels: “How would you characterize the investment of your organisation in the CAO sector? Not just in terms of money and financial support but also with regards to experience, energy and skills.”

Mr Dugan Fraser (Raith Foundation): “Our investment is really small. What we basically do is try to hook people up. We convene and try to get people to build relationships with other actors that could be supportive. One of my key messages is that people need to be making more noise. We need to pump up this conversation. We understand CAO staff to be like marathon runners, who’ve been running a really long race and are exhausted. They feel they are never going to end the race. They need encouragement and reenergizing. They need to feel that what they do is important and transformational and fantastic! We need to make them feel the spirit again that was felt when we were combatting apartheid. We do have a lot to fight against. When I hear people say that the CAOs need to make an investment in their services themselves I scratch my head. I know the people work so hard and make enormous sacrifices. As the Raith Foundation we don’t provide just money. We promote a sense of advocacy and urgency. We know our government is unresponsive until you make a scene. Service delivery protests are happening because people don’t feel heard. I don’t say burn stuff down but I do say make some noise. Hook up, connect, engage, form networks, form alliances, access those budgets! Don’t sit nicely and politely and wait for stuff to arrive. It’s not going to happen! We want our support to be disruptive and get a conversation going that is going to lead to a real change.” Ms Leonie Sampson (DG Murray Trust): “We fund strategically so what we have been funding is research work commissioned by Nadcao. We funded the Centre for Community Justice and Development and continue to invest in combatting GBV with Traditional Healers. Beyond funding we contribute to conversations in the Donor Alliance.”

Ms Vuyiswa Sidzumo (CS Mott Foundation): “In terms of size and money our support for the sector in South Africa is probably even smaller than that of the Raith Foundation. However, half of our funding goes to the CAO sector - if not more. For us, consistency has been really important. We stayed for the long haul, even when it was not fashionable to support the CAO sector and other funders were discontinuing. We believe that there is a difference we can make in South Africa. We do not fund CAOs directly. We don’t have the capacity for that in terms of human resources. We are in fact an American entity; we are not registered as a South African entity. So we have to do things under US law. This makes individual grants very expensive to process, it wouldn’t make financial sense. What we have done instead is to allow some of our grantees to re-grant. These are not always large amounts of money. But those re- grantees also offer training etc. When things got really bad, when CAOs were closing down we said, maybe now we have to create a different pool where some grantees can re-grant. Just to pay the basic costs of running a CAO. We felt in some instances it did make sense to help to keep the doors open while the bigger issues were being sorted out. We dedicated a lot of energy to trying to get sector organised. In 2004 when ICJ Sweden announced they were disengaging from South Africa we got together to face the sustainability crisis. ICJ Sweden had provided some big funds to the sector. When they left, the crisis led to the creation of Nadcao. It was hard! But we stayed on. We’ve invested a lot of energy, even when there were fights and people couldn’t always agree. We wanted to make sure the sector continued. The establishment of ACAOSA is one of the victories. The issue of case management continues though. We struggled a lot around this. We funded various systems of case management, as without credible data it’s very difficult to sustain the argument in favour of this sector. I want to encourage you to do more. Sometimes you may have no equipment but where possible you need to be paying more attention to data capturing. Don’t consider it just another nuisance. If you have data you are able to agitate. You can’t just go to government without data and agitate but if you have back-up it becomes easier. Our current strategy ends in 2018. The CAO sector will receive a large part of our investment until then, at least.”

Shaun Samuels: “Yesterday we listened to a cost-benefit analysis for the sector. What is your opinion on the issue of government funding to the CAO sector complementing the assistance they receive from your organisation? Do you see any room for a private-public partnership?”

Mr Malibongwe Puzi (Foundation for Human Rights): “The sector needs to prepare itself with regards to self-regulation and standards. We need clear rules of engagement. When you ask for resources they want to know who you are, what you do and where. It’s always difficult to get funds from the fiscus. But if you prepare yourself accordingly... South Africa has many international friends.”

Ms Leonie Sampson (DG Murray Trust): “Government funding is not too different form how we invest. The conversation we have in-house is often that we won’t fund any sector where government is not at least contributing partially. It’s a government function, so they have to come to the table.” Mr Dugan Fraser (Raith Foundation): “At the fiscus someone sits down and looks at what is important and who should receive public funding. It’s a very technical exercise. If you manage to get onto the national budget then resources will be allocated. You can tell what is important by how much money they get. So you have to make yourself important! The National Treasury is not going to allocate money to you until you raise your voices. Show them, this is what we do, this is why it adds value, this is how we change people’s lives and this is how we end injustice. Take the conversation forward. Show the evidence. Show them what goes on in your town and how you made a difference. Tell them, if they give you R1 they’ll get R5 benefit. The CAO sector as a movement must build up a rigorous evidence base. The other thing you need is a strong advocacy campaign that is securing the absolute attention of the people that decide how the money gets spent. It’s our money, from our VAT, why is it being spend on things that we don’t think are important? This process of getting yourself onto the budget is a long one. A budget is for three years. So if you manage to get in, you appear on year three only, which becomes year two, which becomes year one, which becomes money. We’ve got to do this work now. We need a strong, united voice. We need to share data. When the Open Society Foundation shows you what you need to be measuring, every CAO needs to measure the same things so that people can compile and send this information to government. While you have no data and no strong networks, you will remain fragmented and irrelevant and that’s just how it is!”

Ms Vuyiswa Sidzumo (CS Mott Foundation): “Should I even dilute Duncan’s message? (laughs). The Judge’s support is really an opportunity we should take advantage of. We all know the CAO sector doesn’t do work that falls under one government department. So there are various ways in which we can tap into the purses of different departments. I want to share an experience with you from a CAO that received 75% of funding from the municipality. They went to their municipality, they took out a PowerPoint and they asked the municipality: ‘Do you know what we do for you? If we had not taken care of such and such, this is what would have happened down the line. The municipality has since increased its contribution every year! This is just to show that maybe the Department of Justice is not the only place that we could access resources form. As civil society organisations, we can’t keep the sector going - we need the state. Even EU resources are not enough to support the sector fully in the way HSCR was showing us yesterday. We should not go as beggars though, but as people that make democracy work.”

Shaun Samuels: “As a sector we’ve come a long way. We’ve got a historic profile, an official voice, we’ve got the Legal Practice Act with interesting possibilities for the future, we’ve got growing government recognition, we are known in those quarters, we’ve got a growing body of research and a whole range of friends. What would you as a panel say to the sector moving into the next chapter? Duncan already mentioned three things: build up an evidence base, supported by a strong advocacy campaign, strengthen your partnerships and speak with a unified voice. Are there any other elements that you would like to share?”

Mr Malibongwe Puzi (Foundation for Human Rights): “We will provide resources to Nadcao, which should be used to enable the CAOs to network at the national and provincial level. The money should enable them to meet and discuss problems. It’s just for them to engage and discuss. We’ll provide that space. With regards to governance and accountability, I want to challenge CAOs: when did you last have your AGM? Are you still representing the people you claim to represent? If you talk on behalf of people you need to have a mandate. We need to become better advocates. We need to learn to say what we want to do and how we do it, we need to get noticed. There is also the issue of succession planning. You must plan that you won’t be there forever. Make sure you plan and train, there are a lot of unemployed young people with potential. Leaders rise up, in each village they are there, check the signs of leadership and build on that.”

Mr Dugan Fraser (Raith Foundation): “How is life experienced by the child of a farm labourer? She is likely to die a farm labour herself. I this country it’s very hard to get out of poverty. One of the things advice offices need to get their heads around is to understand themselves as part of a system. Build relationships with NGOs, attorneys in the town, ward committees and the whole of this complicated system that can lead to change. So that child of a farm labourer can become a doctor or a scientist or whatever she wants to do. We need to hook CAOs up into a social system that is transformational and give people pathways out of poverty. It takes a lot of talking and thinking. As a CAO you need to be impeccable in your practice at your work. When you open up, manage your account book, write everything down and achieve a result. Don’t open the file and never close it! See it through until it’s finished. Keep a record of what was achieved. We all know that pile of open files in CAOs that went nowhere. You referred them and that’s the last you know of it. See the stuff through, do a really good job every single time. So that when you make a claim on public money it’s because you are excellent.”

Ms Leonie Sampson (DG Murray Trust): “I would like to suggest that the CAOs, when they have a specific end goal in sight, break it down into all the different steps that they need to achieve it and make that clear. A lot of it is in your head. We need a concrete roadmap for the sector, skills, systems, leadership, robust evidence, and we need to agree on and be clear about the different ways in which we will get there.”

Ms Vuyiswa Sidzumo (CS Mott Foundation): “I know there is a plan to develop standards. I would strongly suggest that, in order to be taken seriously and before someone else starts regulating, make the effort to self-regulate. That will sift the bad apples. It is up to you to sift those bad apples out and dissociate yourself form them. I’m talking about the suitcase advice offices. Mr Malibongwe Puzi already spoke about the importance of convening. I know there were cynical remarks about this. You asked us why you always need to have to be meeting, why can’t we just give you the money so you can do your work? We could have actually had all the meetings we had over the last two days without you and present to government what we think you need. However that’s not how it works. You have a voice and your voice counts. The sector needs to be united and credible. In order to be taken seriously you can’t be fragmented. Yes, its taken time to get where you needed to be but it’s been a necessary process.”

Question by Thebogo Maseko from the Legal Education and Development Centre: “It’s good to hear there is an alliance of donors. Just like we have united and represent all nine provinces. It’s a step forward. My question is: would it be possible for donors to create one shared financial pool for the CAO sector in South Africa? A problem that is unrelated to this is that we have attended a lot of University clinics but we still have not received our certificates, we’ve not been accredited. This is a problem.”

Question by Linda Diedericks from Hivos South Africa: “My question is directed at the donors specifically, I would like to challenge us about our grant making practice. I would like to suggest that the CAOs also give some constructive feedback when we are doing some things that are not perfect. We are open to learn. One of the roles of the Donor Alliance is to look at the ways of grant making. Are we critiquing ourselves and inviting feedback from other organisations? It’s not just about us giving feedback to the CAOs, it must come the other way around too.”

Question from Advice Office (Eastern Cape): “Fortunately we do have Nadcao and ACAOSA as our mother bodies. We do have belonging now. Still, I would ask the donors for proper support and a clear role in looking at compliance and support for the standardisation of the CAO sector. It’s difficult to have a strong voice or claiming success if we are not categorised for one to understand who we are. I want to urge donors to look at assistance or investment in regulation and models that are going to regulate what CAOs are doing. Of course we are responsible for self-regulation and we promise that through ACAOSA we will do that. In the case of referencing robust results we do really have a problem of not finishing our work or not achieving our clear role of assisting the poor with the case management. If we do referrals there is no – I won’t say no follow up – there is no feedback coming back from those institutions that we refer to. That causes us a failure for you will remain not knowing what happened to the case you referred. This results at times in the assistance provided to be recorded as not useful. How would we strategise within legal framework so we can know the outcomes of our cases?”

Question from Joe Japhta (independent consultant with the leadership of ACAOSA): “Listening to Vuyiswa Sidzumo in particular on the road travelled by Nadcao I am quite strongly reminded how Nadcao came about. Interestingly enough it was predominantly outside donors (outside of South Africa) taking the issue of CAOs to heart, much more than our own government. What we find now, eight years down the line is that ACAOSA has been launched through an enormous effort by Nadcao to really bring the sector to where it rightfully belongs. And this has been done in a dignified, respectful and honourable way. I understand the cost benefit analysis is there to put forward to government, to show what the sector can offer. How to get the sector onto the budget is the next question. There is a concern that we have been too dignified and too respectful. If I can just give an example, recently a paralegal told me: ‘I turned 60, I’m now receiving my old age pension, my wish is just to get funding for the Advice Office before I die. Funding from my own government’.”

Question from Legal Wise: “To my surprise not once has corporate South Africa been mentioned these two days. Usually a lot of fingers are pointed at the corporates. What can corporate do and add value to the CAO sector? I’m hearing so many challenges and I’m thinking, well we’ve done that, we’ve been there… We do case management, we know how to solve that, and we’ve got systems for that. If someone comes in with a claim for maintenance, I can show you how to open a system, I will give you all the documents you need to complete. There are role players out there that can share this kind of information. But I don’t hear a call to engage corporate South Africa. What is the reason for that?” Answer by Vuyiswa Sidzumo (CS Mott Foundation): “With regards to the question about corporate South Africa, there have been attempts to test the appetite. I guess for a long time the CAO sector was not sexy enough and because of the fragmentation we were almost saying: maybe let’s wait with approaching the corporate sector until there is a unified voice. But CAOs have been accessing business money in their own localities. I do think we have arrived at the right time to approach the business sector, not only for financial but also for in-kind support. Legal Wise can definitely support with improving the CAOs management system, accompanied by training.”

“ I want to stress that the CS Mott Foundation is not an implementing foundation, we support other people’s agendas. The questions around content, we can’t do anything about that. I’m hoping that those things are being taken care of by ACAOSA. We will continue to make funding available for ACAOSA to do that.”

“With regards to whether we as donors can pool our funds… Different donors have different priorities and they do not fund only CAOs. Even in funding CAOs we have specific strategies, so pooling our money would not be feasible.”

“Are we inviting feedback as a donor? We as the CS Mott Foundation don’t work with CAOs directly but we would invite feedback form the organisations that we support. We have fairly good relationships with them and we are a donor that people can be fairly honest with without losing their funding.”

Answer by Malibongwe Puzi (Foundation for Human Rights): “With regards to accreditation, I believe CAOs have been trained by everyone on the streets, those trainers are not accredited. ACAOSA, this is something that will come onto your plate again.”

Answer by Duncan Fraser (Raith Foundation): “There are always politics and power dynamics involved in grant making. The bottom line is that donors have power and the people we give money to don’t really… That means that when you behave badly as a donor, there is not a lot an individual CAO can do about it. Those things need to be engaged around. As an individual CAO you don’t have the power to say these things, this is where the magic of an organisation like ACAOSA comes in. They represent the whole sector and can have that conversation.”

“With regards to the role of corporate South Africa, we haven’t raised it because corporate South Africa hasn’t been responsive. But the very presence of Legal Wise here today is very encouraging. You are super welcome and we are in a position to start having that conversation. There is a lot to learn. We need to get over ourselves and start engaging in purposeful dialogue.”

“With regards to a single donor pool: be very careful what you wish for! You don’t actually want a single fund. Because then if you have a bad relationship with that the representatives of that one fund, you sink. There is no one else to fund you. Be strategic. What is best for the sector is a whole lot of donors that are active. You know what they are after and you can craft your applications accordingly.” Capacity Enhancement and Professional Development of Community Based Paralegals Facilitated by Ms Winnie Martins, Centre for Community Justice and Development

Even though the service provided by community-based paralegals is an important one, there is a big gap that needs to be filled with regards to capacity building of community advice offices. This is especially necessary at a time when technology and laws change continuously. This panel discussed the necessity and merits of recognizing prior learning in the sector and what kind of training will be best suited for community-based paralegals.

Black Sash Ms Lynette Maart,

Lynette Maart started with a brief overview of training that the Black Sash provides to paralegals. The organisation is currently offering trainings that involve legal practice and theory and activism. She mentioned ongoing learning, pushing the boundaries of practice and peer learning as important aspects of the trainings provided. In the 1980s, Black Sash developed its first Paralegal Training Manual. In ‘94 the manual underwent a mayor update because of the policy changes and another update is scheduled for 2015. Black Sash structures its training around specific issues experienced by CAO staff. The method used is action-oriented. It focuses on deepening the understanding of law systems and exploring strategic and practical solutions. Sometimes Black Sash invites people for an exploratory training model where the participants develop the model themselves, as they go. According to Lynette Maart, this is a way of gaining traction as well as deepening understanding.

Black Sash is furthermore working together with ACAOSA and Nadcao on supporting the Dullah Omar Summer School, which will focus on professional development (with horizontal and vertical learning modalities). The summer school will provide opportunities for networking and cross-fertilization. Black Sash would like to stimulate the entry of new paralegals into the Advice Office sector, women and youth in particular and stimulate advocacy sharing resources materials and tools.

Cape Pensinsula University of Technology, Unit for Applied Law Adv. Noeleen Leach

The Cape Peninsula University of Technology is in the process of having their newly developed Masters in Paralegal Studies approved by the Department of Higher Education. Taking into account the context of strengthening access to justice and the transformation of the legal profession, CPUT was adamant about not going the LLB route. CPUT carried out a situation analysis, looking at the global and South African trends in higher education (see slide I below). One of the aspirations of CPUT is to increase labour mobility so that people do not have to be extensively retrained to grow in their profession or take a side step into a different profession. Slide I and II

JUSTIFICATION Paralegal: (Global trends in HE) scope of practice   • Active citizenry • Poor readiness of • Quality education graduates • Labour mobility • Intermediate ~ Represent • Expanding HE higher skills • Systemic blockages NDP NSDS 2030 III Assist

DOJ & CD Advise STRAT SASSETA PLAN

•Access to justice • Critical skills Inform •ADR • Scarce skills • Adm. of estates • LPA 2014/ LLB crisis

CAT C SUBMISSION UNIT FOR CATEGORY C SUBMISSION UAL APPLIED LAW NOLEEN LEACH

Adv. Leach pointed out that there is a difference between a ‘trade’, an ‘occupation’ and a ‘profession’, with a profession having the following characteristics:

 Advice and service to the community in a specialised field of training  Governing body – represent/control/discipline/ sets minimum standards for entry and education  Continuous update of education and training  Standard of ethical conduct and performance

If the paralegal profession does not yet qualify on all of the above, the sector has to make sure it is developing into that direction.

Tshwane University of Technology Professor Dane Ally

The Tshwane University of Technology offers a national diploma in paralegal studies, which is SAQA accredited. After graduating, approximately 90% of its students find employment, most of them at the master’s offices, at the registrar of deans or at Legal Aid South Africa. Some of the challenges identified by Prof Dane Alley are that: 1) It is hard for paralegals to find employment in the private sector as the concept of paralegals is not very well known; 2) there is a lack of legislation which will set a minimum of standards for recognition of the paralegal profession.

Question from the audience: “Over the years, we (community based paralegals) have accumulated quite a number of certificates. How will this prior learning be taken into consideration by your training courses?”

Prof Dane Ally: “We have a system for recognition. We look at the course content of the certificates. When a student wants to apply for recognition of prior learning, if he/she has been in practice as a paralegal, then the student would have to write an exam in addition to the affidavit to the CV he/she provides.” Adv. Noeleen Leach: “We want to influence national policy in terms of how there should be migration from the one sector to the next. How can these certificates articulate into higher education? There is no real inter-ministerial collaboration in terms of legal education and training. I’m speaking here about a policy framework at various levels within institutions. We need to look at similarities of emerging professions so we can look at how we accommodate that.”

Lynette Maart: “We use two processes. Sometimes we do a survey. Other times people submit their CVs and detail their experience. We will have focus group discussions; participants will be brought together before training starts to hear where their knowledge base is around this particular issue that we want to focus on. Sometimes we also ask people to bring their cases so we can get a sense what they will need to develop further.”

Question from the audience: “Different paralegals are at different levels of learning, how do you accommodate for that?”

Adv. Noeleen Leach: “We looked at the paralegal sector and asked ourselves whether it would be possible for those individual components to feed into our programme. It is possible to get NPF Level 5 recognition for example. In terms of short courses, which are credit bearing, it has to be credit bearing… It can accumulate over a period of time which feeds into a qualification that needs to take you somewhere.”

Prof. Dane Ally: “At this stage we don’t cater for community based paralegals. Our students are employed in government so those are students for whom the minimum requirement is matric. From 2016 onwards they would be able to improve their qualifications to an advanced, postgraduate and Masters level. If they have no matric and they applied for recognition of prior learning it could still apply.”

Question from the audience: “How do you bridge the gap between education and training?”

Lynette Maart: “At Black Sash a lot of the work is around people’s practice. We are really giving them an introduction into the field, covering the legal and social aspects. We create a platform and interest for people to take the work further. Sometimes people just want to explore a particular issue. They can take themselves to the next level and pursue qualification. We don’t offer formal training.

Adv. Noeleen Leach: “We consulted with Black Sash and Nadcao and various practitioners of the law. One of the first things they said about our programme was that it was too theoretical, so we went back to the drawing board. We integrated theory with practical aspects. Our students will be going out into the field for practical experience in the first year already.”

Prof. Dane Ally: “In order for our students to graduate, we require them to serve at least six months in practice as part of work integrated learning. During this period they will work in attorney firms, master of the high courts, the magistrates’ court, etc.” Question from the audience: “Is what you are offering credit bearing and up to date? How do you make sure what you offer is what paralegals need?

Question from the audience: “Research has shown that the teaching language influences how well people digest information. How do you cater for that? Secondly, does your training focus on issues like succession planning and leadership development? That is critical to building the sector, is there any component in the training that addresses this? Being an excellent paralegal doesn’t mean you’re an excellent CEO.”

Adv. Noeleen Leach: “We are working towards having our programme accredited. You unlock public funding if you have it registered with SETA. There is a skills levy you attain and employer benefits. We focus on a composite set of skills; we have consulted widely on our programme. We decided to focus on the pathways that a dispute follows and the requisite skills of a paralegal: information sharing, advice, assistance and representation. Besides those skills, there are other skills, which we address by graduate attributes that we build into our programme such as business management, constitutional law and advocacy.”

Question from the audience: “Us as paralegals we will have to sit down with you and discuss most of these things. We’ve tried so many things to engage so we can help the community... If you talk of diplomas we once wrote an examination of the University of the Free State, up till today we have not received our certificates. We are trying to engage but at the end of the day… I also went to social development. I tried a degree of social work. A bursary for me is not working. They look at my age, is it a sin to be old? Am I not supposed to continue with my studies? Maybe you can help me. There was a bursary form social service, maybe I should go personally to the ministry, I want to continue with this degree. Our children should also get these bursaries but what about us who are helping the community and want to go the extra mile?”

Adv. Noeleen Leach: “The input that was given on our programme by paralegals came from a very narrow view of the legal profession. I usually ignore them because they have a territorial interest in preserving themselves. So we consulted very widely. We went back to drawing board. We really want to make the course fit for purpose so people can hit the ground running. We looked at how FET colleges could fit into our programme. Below NPF Level 5 we are not allowed to curriculate. We are allowed to offer short courses though, which are credit bearing and that can feed into our programme.”

Question from the audience: “I would like to challenge Mr Ally. Where do you place your graduates for the practical part the study? Before you become a student you are a member of the community, why don’t you integrate your students into communities?”

Question from the audience: “Does your curriculum also look at indigenous law? Most of the cases that come to a CAO, it is because people don’t trust the current law and feel more comfortable within their own indigenous way of doing things.” Question from the audience: “My question is aimed at Black Sash. I know that you have terminated the case work. What effect does this have on our communities? Will you collaborate with our provincial structures so that we have more impact in communities in terms of campaigns etc.?”

Prof. Dane Ally: “From March 2015 onwards we will be running a Community Advice Centre at the University where members of the public will be entitled to get legal advice from our students. That will also be part of work integrated learning.”

Lynette Maart: “I agree that the instruction language has an impact in mediating concepts. Our staff members speak many different languages but a lot of our training material is in English. We did spend some money on translations to mediate that problem but it’s a costly exercise to translate into eleven languages. It will remain an issue but in discussions we try and open up - people use vernacular. On the issue of leadership, in the way in which we structure our models, it needs to be built into that. How do you make a presentation, who do you speak to an audience? Finally, with regards to our casework, we have indeed closed our Advice Offices in 2012 but we haven’t stopped working with the CAO sector. We had to find creative ways of working with cases. We have to talk about how we penetrate provincial structures so that information can flow.”

Adv. Nollene Leach: “On the issue of role out, we are working on it at the moment. It all depends on how quickly the Department of Higher Education approves our curriculum. The first cohort of students will be fully funded; we will have the luxury of selecting the first cohort form anywhere in the country, from all walks of life. We are working on other funding models as well. We have been working on multilingualism the last seven years. Our lecturers speak English, Afrikaans and Xhosa. You have to focus on the language of the discipline, which would be English, but this should not be an impediment to learning taking place. Our lectures take place in English but our tutoring takes place in the students’ mother tongue. We have a 96% pass rate of students who have attended the multilingual tutorials.”

Moderator: “Thank you all very much. I think as ACAOSA you need to meet again, map out your skills, and explore how prior learning will be accommodated. This session requires a whole day or two days, it has been unfair with regards to time allocation.”

Partnership Modelling for Sustainability of Community Advice Offices Facilitated by Prof Terwin de Vos, Rhodes University Law Clinic

Panel: Luyanda Ngonyama (Department of Social Development) Erica Emdon (Probono.org) Partic Mohondemor (Legal Aid South Africa)

The session began with an introduction of the panel. The speakers were to deliberate on the various partnership models, which are offered to the CAO sector by their organizations. The representative from the Department of Social Development, Luyanda Ngonyama, started with a definition of the word partnership and highlighted that it is an alliance, sharing or participation which can be formal, structured and expressed by an MOU.

Luyanda highlighted that partnerships can be fragile and fall apart if there is a lack of direction. The concept of partnerships is not linear. It should always reflect the needs of the community and cannot be imposed by external forces. She further shared that there are three critical elements of the DSD’s partnership model: it is community based, participatory and results orientated. DSD’s pilot project is being carried out in the Western Cape.

Probono.org offers professional legal services to the poor. Their models include law firms helping CAOs and their clients. Most attorneys are encouraged to do probono work but there are often instances where there are conflicts of interest (i.e. an attorney may be working for a firm which is representing a huge corporation and the CAO may present cases where an employee was dismissed by such a firm).

Limpopo is Probono.org’s pilot province. The model is based on networks between CAOs and the three towns which are part of this network are Tzaneen, Machado and Rustenburg. They have noticed that the CAOs are poorly resourced, under-developed or have non-existent management. The distance and geography also present challenges for attorneys who desire to assist advice offices or they may deal with matters which are completely out of their jurisdiction and they may not be able to get to court to hear the matter. A huge challenge thus far has been that of case management by the CAOs. There is a lack of recording and a poor paper trail which results in the inability to build credible stories for donors.

Probono.org has been successful in ensuring that paralegals are trained in mediation and arbitration.

Legal Aid SA has paralegal posts in South Africa and a national call center. They highlighted the value of CAOs as they are not limited to the adversarial approach. CAOS are more instrumental in reconciliation, empowerment and making the law easy to navigate. They highlighted the impact of class actions in landmark cases and emphasized the need and value of civic engagement. Legal Aid offers back up services to the CAO sector, such as the documentation of cases as well as knowledge sharing.

Legal Aid referred to the ‘Community Based Paralegals: A Practitioner’s Guide’, a book intended as a guide to creating and maintaining paralegal programmes, based on the Open Society Justice Initiative’s initial experience establishing a community-based paralegal program in Sierra Leone. The book distills lessons learned from Sierra Leone and other community-based paralegal programs. According to Legal Aid, the guide ought to be used as a model in South Africa.6

A comment was made on the low level of audience participation in the symposium. ACAOSA was called on to cooperate with LegalAid, Probono and DSD to formulate appropriate MOUs. The disjuncture between what was said by the above-mentioned organisations and what is sometimes delivered in practice was stressed.

It was mentioned a transfer or training of administrative and other soft skills to the CAOs is essential and will make the requests of partnerships more feasible. Issues regarding communication as well as time management and overbooking were highlighted as key challenges.

6 http://www.opensocietyfoundations.org/sites/default/files/paralegal-guide-20101208.pdf Judge President Mlambo raised concerns about the disparity between what is reported to him as the Chairperson of Legal Aid SA and what is really happening. He implored both CAOs and partners to be proactive in their solution finding. Declaration

Community Advice Office (CAO) Declaration on Community Paralegals Johannesburg, 25 November 2014 Preamble We, the signatories of this declaration recognize that the depth of poverty, social and access to justice needs can only be addressed through meaningful partnerships between government, the private sector and civil society. Work by Community Advice Offices (CAOs) provides enormous benefits to vulnerable communities and to the justice sector as a whole. The grassroots location, skills, institutional capacity and credibility of the national network of CAOs is an undervalued national asset, which if correctly leveraged, can make a significant improvement in the quality of life of poor communities in South Africa. Solidarity with, and sustainability of the CAO sector by government, donors and the private sector, is central to national, provincial and local efforts to directly address poverty and promote human rights and democracy in South Africa. We represent over 312 CAOs working to advance justice in all provinces in South Africa. Our collective experience has shown that community-based paralegals play an indispensable role in bridging the gap between law and society through the provision of holistic legal information and assistance, advocacy, education and referrals of clients for specialised social and legal services. The CAO sector has a long history of social contribution to South Africa having played a significant role in dismantling apartheid and in advancing democracy, human rights, and access to justice. This declaration acknowledges and builds on the Constitution of the Republic of South Africa, the 2012 Kampala Declaration, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, as well as earlier statements of principle, including the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights. We resolve the following: 1. To advance the mission of ACAOSA towards a united, credible, professional, skilled, regulated and sustainable CAO sector, providing high quality and accessible primary legal services, Alternative Dispute Resolution (ADR) and other developmental services to ensure that the human rights of the indigent are promoted, protected and fulfilled 2. We commit to strengthening the quality and consistency of community-based paralegal efforts, through mechanisms for training, supervision, evaluation, and community oversight. We seek to make our work more evidence-based, and to increase learning among programs across borders. To that end, we commit to participating in networks of paralegal organizations at national, regional, and international levels. 3. We call on the South African government to recognize the role community-based paralegals play and its commitment to effectively participate in the development of policy and legislation regarding paralegals. 4. We call on governments and development partners to invest in the scale-up of community-based paralegal efforts, and recognize the CAO sector for its social profit and contribution to the overall development imperatives of South Africa. 5. State recognition should not entail state control. We call on government to respect the independence of community-based paralegals, so as not to hinder the crucial role paralegals play in holding the state accountable.