Exorbitant legal fees in the dock

High charges ‘make justice a commodity only privileged can buy’

THE “clearly high” legal costs in the country have come under scrutiny of a commission investigating ways to broaden access to justice.

Commissioners of the South African Law Reform Commission (SALRC) have started criss-crossing the country to hear from communities on how lawyers’ fees blocked citizens from accessing the courts.

The commission’s next stop will be Hammarsdale in KwaZulu-Natal on Monday.

They have already visited the Free State, Mpumalanga and Eastern Cape.

“The overall aim of the commission’s investigation is to find ways to broaden access to justice and to make legal services more affordable to the people, while taking into account the interests of the public and of the legal profession,” said the SALRC in its document inviting public comments.

Chaired by Judge Jody Kollapen, the commission accepted as common cause that legal fees in the country were exorbitant and unaffordable to many.

“The majority of South Africans are unable to access lawyers because of unattainable legal fees, making access to justice a commodity that only the privileged can buy,” said the SALRC.

“The cost of legal services in South Africa is clearly high.”

It said exorbitant fees worked against the poor in matters such as bail applications, bail appeal, maintenance, domestic violence matters, land claims, evictions and labour issues.

“The cumulative impact of fees and costs is a crucial factor in preventing the poor and marginalised from accessing and benefiting from the justice system.”

The 205-page document referred to hourly rates cited by Jonathan Klaaren, a law professor at Wits University, in 2014 to illustrate the costly nature of legal fees.

Klaaren pointed out that in the Joburg corporate legal sphere an LLB graduate, without admission as an attorney, can charge R1 100 an hour as a standard rate.

A professional associate attorney with five years of experience can charge R2 400 an hour. A director with 10 years can charge R4 500 an hour. A senior director, who has notched 20 years, can charge R6 000 an hour, said Klaaren.

A 2015 report on Public Interest Legal Services in South Africa revealed that a senior counsel can charge between R25 000 and R35 000 a day.

Lawyer costs were not only unaffordable to the general population but to the government too, said the SALRC.

“Legal fees have risen to exorbitant levels, not only making access to legal services by the public the domain of the wealthy, but also making access to legal services unaffordable to the state.

“The setting of legal fees has remained largely the domain of the legal profession itself, with little meaningful intervention by the state or consumers of legal services.”

The commission looked set to revive an old debate about whether law graduates should undergo regulated community service.

“Should there be a law graduate community service programme in South Africa? If so, how and why?” it asked.

The SALRC will supply its final report containing recommendations to the Department of Justice and Constitutional Development.