List of Tables
Chapter 4: Community–based Paralegals
4.5.2 Potential benefits of utilising community-based paralegals
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Wojkowska (2006:20) argues that the traditional justice system does not work in resolving disputes between parties with very different levels of power and authority. “Unequal power relations and susceptibility to elite capture may reinforce existing power hierarchies and social structures at the expense of disadvantaged groups” (Wojkowska, 2006:22). Stubbs (2010:92) notes that “critiques of restorative justice as a response to domestic violence observe that there are unequal power relationships between victims and perpetrators of domestic violence and that the offender has the capacity to exert power over a victim and the process itself.
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“familiarity with local communities, paralegals are often more capable than lawyers when it comes to straddling formal, informal and customary legal systems”.
4.5.2.2 Community-based paralegals partner with the formal and traditional justice systems Scholars provide evidence of CBPs not only straddling justice systems but also partnering with officials in formal and traditional justice systems. Robb-Jackson (2012:23) contends that paralegals’ work play a significant role in affording access to justice and CBPs “should continually collaborate with formal justice actors”. In much the same vein, Golub (2003:35) points out that paralegals’ effectiveness also depends on relationships with law enforcement agencies and the political arena in which they operate. As to the traditional justice system, Ubink and Van Rooij (2010:6) contend that one of the important methods to improve the functioning of customary law is to develop linkages between the customary justice system and the informal justice system administered by paralegals. Likewise Dugard and Drage (2013:32) indicate that during their study, they were told about a chief that asked paralegals to conduct proceedings in his court in order to ensure that the parties in dispute were aware of their legal rights and options.
4.5.2.3 Community-based paralegals have a wider and more flexible set of tools
According to Robb-Jackson (2013:13) and Maru (2006a: 33), paralegals apply a combination of legal and non-legal tools to meet their clients’ justice needs, including mediation, education, organising, advocacy, and referring cases to lawyers for litigation. They address intra-communal disputes, as well as problems and abuse that arise between citizens and the traditional authorities, between citizens and state institutions, and between citizens and private firms. The focus of the service provided by CBPs is on disempowered communities, in order to remedy breaches of fundamental rights and freedoms.
Moorehead (2003:765) notes that studies on the role of non-lawyers reveal that clients felt that non-lawyers were significantly better than lawyers in the following “areas:
Knowing the right people with whom to speak about the client’s problem,
Paying attention to the client’s emotional concerns,
Listening to what the client had to say, and treating the client as if she or he mattered,
Taking action that the client wished, and having enough time for the client,
Giving the client information on what would happen in the case,
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Standing up for the client’s rights”.
Moorehead’s (2003:765) study found that non-lawyers out-perform lawyers in making the client feel comfortable and informed. Non-lawyers were also more comfortable with and skilled at working with those with a less sophisticated understanding of the law; clients reported a high level of satisfaction with non- lawyers, especially in terms of non-legal needs such as emotional support and effective communication.
4.5.2.4 Community-based paralegals need not limit themselves to an adversarial approach
Maru (2006b:470) observes that paralegals do not limit themselves to an adversarial approach. According to Robb-Jackson (2012:19), in Sierra Leone, paralegals offer communities new and additional justice options, thereby changing the traditional role of chiefs as the focal point of justice. Paralegals who were interviewed stressed that they are not in competition with the chiefs, but are playing a complementary role; the focus is collaboration in increasing access to justice. Cappelletti (1992:35) explains that there are advantages to a procedure that is simple, informal and less expensive than litigation, such as non-adversarial mediation.
However, serious cases should remain the preserve of the courts. Schonteich (2012:25) found that paralegals are playing an increasingly important role in enhancing access to justice, largely through a non-adversarial set of tools.
4.5.2.5 Cost effectiveness and availability
Scholars give different reasons for indicating that CBPs’ free provision of legal services ensures that justice is accessible to all. Maru (2006a:470) explains that entry barriers to CBP services are low: it is much easier and less expensive to train and deploy paralegals than lawyers. Robb-Jackson (2012:12) observes that CBPs are recognised for providing cost-effective, relevant, and proximate justice solutions, and that they improve the accessibility and delivery of legal services. Golub (2000:303) argues that even where lawyers are available, paralegals can sometimes be equally competent, and they are far more accessible and cost effective. With paralegals in place, lawyers can operate in a more selective manner. Pigou (2000:25) notes that paralegals are frequently the only providers of legal advice in remote and poor rural communities, and that they play a crucial role in extending cost-effective legal services.
Moreover, in terms of availability and due to their long-term engagement with cases and on-going physical presence in the community, paralegal operated programmes have the potential to reduce retaliatory violence against women who seek justice services, thus strengthening and complementing the formal and state justice processes and bridging the gap between the law and the people (Robb-Jackson, 2000:23). Kigodi’s (2013:88)
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research revealed that paralegals “stand out as the best alternative to people living without legal protection”.
Nonetheless, some legal professionals like lawyers and advocates regard them as intruders and unprofessional workers that are unqualified to handle legal matters despite their visible role.
4.5.2.6 Community-based paralegals provide culturally competent services
Dugard and Drage’s (2013:38) study revealed that many of the soft skills of paralegals derive from the fact that they live in the community that they serve. Wojkowska (2006:13) found that formal justice systems could be culturally uncomfortable for rural women and that going through the formal justice system may lead to more problems. Vorster (2001:54) takes this debate further and points out that “knowledge of the cultural context of the customs, ideas and practices is essential”. He submits that in the field of customary law, such knowledge might promote justice and harmonious relations between people. Robb-Jackson (2012:
12) adds that over and above the fact that paralegals are culturally, geographically and economically closer to the communities they serve, they have specialised knowledge of particular areas with which lawyers may be unfamiliar, such as alternative dispute mechanisms and cultural practices.
4.6 The Interactive Nexus between Community Restorative Justice, Community-based Paralegals and Domestic Violence Cases
Given the various roles, skills and knowledge of CBPs in advancing access to justice, there could be a nexus between restorative justice practices, CBPs and the handling of domestic violence cases. The review of the literature on access to justice has demonstrated that there is a difference between people having a right of access to the justice system and access to justice in reality (Dias, 2009:4). Access to justice is a broad concept that refers to a variety of issues that have an impact on people or communities’ ability to seek and obtain redress when their human rights are violated. Forums to hear these issues are not exclusive to the formal legal system; they include access to the customary or traditional justice system and informal systems of justice such as restorative justice practices. This demonstrates the relationship between access to justice and the informal justice role played by CBPs that service clients by operating across plural justice systems.
Accessing justice in relation to domestic violence through the criminal justice system has been the subject of much critique. Presser and Gaarder (2000:186) believe that laws that ‘get tough’ on offenders have fallen short of their intended goals, in part because the extra-legal causes of women’s oppression remain unchanged. Some battered women do not believe that the criminal justice system can effectively solve their problems (Presser and Gaarder, 2000:187). In contravention, some scholars cite the benefits of the rule of law in response to violence against women. The law has a positive role to play and the cumulative evidence
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suggests that the greatest prospects for eliminating violence and abuse are associated with criminal justice responses, which incorporate surveillance and control and include rehabilitation programmes with an explicit focus on violent behaviour and supporting beliefs. According to Lewis et al (2001: 121), while potentially relevant to certain offending behaviour, community conferencing is inappropriate to deal with longstanding relationships in which one partner has been persistently violent to the other; nor can an arrest be the sole intervention to eliminate the offending behaviour. Gaemate and Howley (2009:253) explain that in a punitive system, there is always a tension between recognising the harm to the victim and protecting the rights of the offender. This, points to the importance of restorative responses to domestic violence being introduced in a general framework of restorative justice.
The criminal justice system is by far the most recognised way of solving domestic violence. This begs the question of whether there can be an interactive nexus between CRJ, CBPs’ activities and the processing of domestic violence cases as a way to expand access to justice (Robb-Jackson, 2012:23). Despite the rapid growth of CBP programmes, there is a paucity of research on this issue. Kigodi (2013:18) contends that the role of paralegals in addressing domestic violence has been partially studied but not fully covered regarding challenges and success from the point of view of beneficiaries. Kigodi (2013:15) adds that violence against women and girls is rampant and other institutions like the police and courts are largely incapable of providing assistance to poor communities. The informal legal systems used by paralegals in Tanzania emerged to narrow this gap.
Dugard and Drage (2013:11) and Fernandez et al ( 2009:46) agree that South African CBPs incorporate both restorative justice and victim care theories in their day-to-day interactions with victims of domestic violence, helping to solve problems within families. It is therefore suggested that there is an interactive nexus between CRJ, CBPs and domestic violence cases. However, there is a gap in the empirical literature on this subject which this study hopes to help fill. Exploring the role of CBPs in CRJ from the perspective of CBPs and those who have received services from CBPs is the best way to provide insight into these phenomena. The discussion now turns to the convergence of the literature review and formulation of the meta-conceptual socio-legal framework that guides the production of empirical evidence, findings, conclusions and recommendations.
4.7 Convergence of the Literature Review and the Formulation of the Meta-conceptual Socio- legal Framework
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The literature examined in this chapter centred on CBPs and restorative justice practices. Earlier literature review chapters encompassed access to justice in a legal pluralism environment and CRJ. With the convergence of the literature review, several conceptual frameworks are adopted to guide the study. As stated at the close of Chapter 3, Table 3-1 adapted from Daly and Stubbs (2006:17), will be used to identify and study the problems and benefits associated with restorative justice. To design Table 4-1, which explores the problems and benefits associated with CBPs, the researcher drew largely on the scholarly work of Noone (1991:34), Maru (2006:470) and Wojkowska (2006). To discuss the meaning of the problems and benefits associated with community restorative justice on the one hand and with CBPs on the other hand, the researcher drew upon scholarly work of other authors. For convenience both tables are re-presented below.
Table 3-1 Problems and Benefits of Community Restorative Justice
Problems of CRJ Benefits of CRJ
Pressure on victims Victim voice and participation
Role of the community Victim validation and offender responsibility Mixed loyalties Communicative and flexible environment Impact on offenders Relationship repair
Victim safety Responsiveness to individual needs of victims Source: (Daly and Stubbs, 2006)
Table 4-1 Problems and Benefits of Community-based Paralegals
Problems of CBPs Benefits of CBPs
Second class justice
Capacity to straddle plural legal system
Cheap alternative to justice Have a wider and more flexible set of tools
Lack the guarantee of independence and
consistency Need not limit themselves to an adversarial approach
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Lack of state regulation of services Cost effectiveness and availability Divert pressure to improve training of
lawyers CBPs provide culturally competent services
Unequal power relations CBPs as partners with the formal justice system Adapted by researcher from Noone, 1991; Maru, 2006; and Wojkowska, 2006
Combined, Tables 3-1 and 4-1 provide the meta-conceptual framework for the social science aspect of this research study. Multiple case studies, each presented in Chapters 6-9 display matrices that are used to both present and analyse data. How the data respond to the meta-conceptual framework is detailed in chapter 10 after a cross-case synthesis of all four case studies using matrx analysis. Data from the social science component is examined through non-doctrinal analysis. In contrast, doctrinal analysis refers to the law or legal analysis of statutes or case law. In this study, the DVA and case law relating to domestic violence constitute the pertinent law. Taken together, the social science meta-conceptual framework that yields non- doctrinal analysis and the law, which generates doctrinal analysis, comprise the overarching socio-legal framework that guides this research study.
4.8 Chapter Summary
In this chapter, the paralegal sector was introduced as the third literature review chapter. Categories of paralegals and profiles of CAOs in South Africa received primary concentration. The category of paralegals that is the subject of this study was identified as CBPs who manage CAOs with the support of the NGO sector. Various roles of CBPs were highlighted such as the service, developmental, human rights roles as well as the role of straddling plural justice systems. Just as there are problems and benefits associated with CRJ so are there problems and benefits associated with CBPs. Selected problems and benefits relevant to CBPs were discussed with reference to scholarly views regarding such problems and benefits. In view of the principles, values and roles of CBPs it was suggested in this chapter that there is an interactive nexus between CRJ, CBPs and domestic violence cases. Likewise, it appeared in Chapter 3 that there is an interactive nexus between access to justice, plural legal systems and domestic violence cases. These nexuses are important because they are expected to shed light on the complexity of the environment within which CBPs and CAOs operate as well as the intricate state of being of CBPs. This chapter highlighted the convergence of the three-chapter-long literature review and the forumuation of the meta-conceptual socio- legal framework that guides this empiricism.
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