List of Tables
Chapter 4: Community–based Paralegals
4.3.6 Profile of community-based advice offices in South Africa
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4-107 4.3.7 Challenges of community-based advice offices
Community-based advice office face many challenges beyond lack of funding. One challenge is whether the existence of CAOs divert attention away from state efforts to train lawyers to work with diverse populations in remote rural areas. Kahn-Fogel (2012: 776) argues that although paralegals play a vital role in meeting legal needs that lawyers cannot meet, of concern is that they often perform the kind of sophisticated work offered by lawyers. This could be addressed if paralegals were subject to regular oversight by lawyers and played only supportive roles. Kahn-Fogel (2012: 774) adds that, while paralegals cannot replace the work of lawyers, they are able to mitigate some of the harm caused by customary practices and the scarcity of lawyers. Lack of standardisation weakens their efficiency and performance. Furthermore, the efficacy of their work depends on the cooperation and understanding of a given community and local authority.
Other challenges include sustainability of operation and absence of recognition of CAOs and CBPs as well as lack of monitoring and evaluation. Franco, et al (2014:18) argue that the perception that only lawyers know the law makes it difficult for paralegals to gain recognition, whether formal or informal. Franco et al (2014:31) identify a number of concerns relating to the use of CBPs. The first problem relates to the accountability, sustainability and location of CAOs. Paralegal programmes are poorly financed, and it is an on-going struggle to sustain them over time. Paralegals depend on the patronage of other organisations.
When there is staff turnover in the other organisation, this could severely compromise their work (ACAOSA: 2013:11, Franco et al, 2014:28). Buckenham’s research (2014:9) revealed that some advice offices have adequate office facilities, while others are located in insecure, unsafe, noisy locations and occupy small offices owned by uncaring landlords or share an office with unsuitable tenants. Buckenham argues that proper accommodation is essential for CAOs to work effectively. Furthermore, as noted earlier, some paralegals are not paid on a regular basis; this threatens to collapse the paralegal sector. Msiska, Igweta and Gogan (2007:151) are of the view that the issue of sustainability could be solved by more donor investment in the work of paralegals.
The second problem relates to recognition and certification of paralegals. According to Dugard and Drage (2013:17), South African CAOs are not formally regulated “and there are no prescribed minimum operating standards or regulatory authority to ensure compliance”. Buckenham’s research also revealed that CBPs undergo such diverse training that it is difficult to establish a uniform level of competency. Some training is accredited while the level and source of other paralegals’ training is inconsistent (Buckenham, 2014:12).
Kahn-Fogel (2012:776) argues that the lack of standards regulating the paralegal profession is troubling.
There are no uniform criteria to determine paralegals’ eligibility to dispense legal advice. However, Franco, et al (2014:29) caution that recognition and accreditation may bring its own challenges; the process may
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create an elite group of paralegals with no organic connection to their constituency in the long run. Franco et al ask the question: “Should there be just one type of recognition, a one-size-fits-all approach?”.
The third problem relates to monitoring and evaluation. Community-based paralegals are concerned that there is very little monitoring and evaluation of their work (ACAOSA, 2013:9). Franco, et al (2014:29) note that despite the long history of paralegals “little has been done to measure the impact of paralegal work on access to justice”. Some paralegals are weak in following-up on cases reported and handled which would be useful in measuring their impact on the communities they serve. Franco et al (2014:30) explain that monitoring and evaluation do not “seem a priority in light of the seemingly more urgent concerns of training paralegals and immediately making them work on issues facing the community. The issue of scarce resources definitely comes into play, as limited funds are used more for training and actual dispute resolution rather than for trying to monitor the outcomes of their work”.
The fourth challenge is that the law and development is not static. According to Franco et al (2014:30), aside from the institutional problem of financial sustainability, CBPs are challenged to provide legal assistance at grassroots level, in the context of increased legislation and rights, as well as increased consciousness of rights, but weak implementation. The fifth problem relates to paralegal work with women and children.
Community advice offices deal with cases of domestic violence, child abuse and rape. Buckenham’s (2014:4) research revealed that community members prefer paralegals’ approaches to such cases; however various scholars warn that working with vulnerable people is complex and requires a deep understanding of the dynamics involved. Franco et al (2014:30) argue that “experience shows that women who suffer domestic violence are unlikely to challenge their attacker without strong support from the community;
therefore paralegals may need to engage in organising such support”.
The study commissioned by NADCAO to CCJD identified additional challenges confronting CBPs and their CAOs. These include training and other support as well as standard, accredited training programmes to address the different levels of legal and technical competency across CAOs. Additional training needs include an efficient system to record cases, and training in computers, administration and financial management. Finally, the work of CBPs in South Africa is not well publicised; there is a need to share their knowledge with a wider audience (Buckenham, 2014:8).
Despite the problems faced by CBPs in the management and operation of CAOs, CBPs perform well-defined roles which are next described.
4-109 4.4 Roles of Community-based Paralegals
Kigodi (2013:47) observes that paralegals play a generic role and offer many different services. They are typically involved in anything relating to the rights of women and girls and the community in general.
According to Fine (1992:6) CBPs play a role in service, development, and human rights. However, to CBP role identification, this study adds the CBPs’ role of straddling plural justice systems. Each role is discussed in turn.