Probono, WelcomeReport of the conference

Friday, May 10 – Saturday, May 11, 2002, Birchwood Conference Centre, 
Johannesburg
PRO BONO
The Responsibility of Lawyers to Undertake Pro Bono Publico and Public Interest 
Work, 
Conference 10-11 May 
"LAWYERS FOR THE PUBLIC GOOD" 

Report

Contents: 
1. Introduction ………………………………………………………………………...3
What is pro Bono Publico? ……………………………………………………...3
Why Pro Bono for South Africa? ……………………………………………….3
2. Background ………………………………………………………………………..5
Why a Conference? ……………………………………………………………….5
Pre Conference Pro Bono Survey …………………………………………...…5
Pre Conference Regional Workshops ……………………………………..….6 
3. The Conference: DAYONE ………………………………………………………..6
Welcome ……………………………………………………………………………6
Opening Address ………………………………………………………………….7 
Session1: Mandatory system versus Voluntary System ………………..…7
Session 2: Legislative and Policy Initiatives ……………………………..….8

Session 3: International Models …………………………………………….….9
4. The Conference: DAY TWO ……………………………………………………..12
Session 4: Developing a Model for South Africa …………………………..12
Recommendations ………………………………………………………………14 
Session 5: The Way Forward ………………………………………………….15
Rapporteur Conference Summary ………………………………..15 
Statement of Commitment …………………………………………18
Closure ………………………………………………………………...18
APPENDIX: 
1. INTRODUCTION 
The legal profession in South Africa has a long history of engagement in 
voluntary legal service. During the apartheid era, it was largely pro bono 
lawyers who actively challenged the racist and oppressive laws of the time. The 
historic impact of this valuable contribution by some in the legal profession in 
bringing an end to the dark days of apartheid, is undeniable. 
There is, however, a growing belief that more free legal work was done then than 
now. According to Judge Navsa:
There is a growing perception that, in spite of South Africa having one of the 
best Constitutions in the world, its legal practitioners are losing their 
consciences. Whereas the Constitution has created many opportunities for the use 
of law to promote social justice and democracy, there are probably fewer lawyers 
practising in this area than was the case under apartheid… There was a sense of 
mission and moral duty. 
Whilst apartheid laws may be a thing of the past, a legacy of inequality and 
poverty remains, and it is unfortunate that the commitment to social justice in 
the private sector has declined when it has become increasingly important for 
the development of our country. 
What is Pro Bono Publico?
Pro Bono Publico, also referred to simply as Pro Bono, is commonly understood as 
the provision of legal services to poor, marginalised and indigent individuals, 
groups, or communities, without a fee or expectation of compensation, in order 
to enhance access to justice for such persons who cannot afford to pay for legal 
services.

Why Pro Bono for South Africa?
President Thabo Mbeki declared 2002 the year of the volunteer. In his recent 
address at the opening of Parliament, the President reiterated his call to all 
South Africans to engage in a partnership with government "in a national effort 
to build a better a life."-:
We have it within us as a nation to join them and many others to forge a massive 
movement of volunteers- dedicated workers in all fields of life- and bring to 
life those enduring attributes of all our people, of perseverance and 
persistence in the struggle for our own good and the good of humanity…We will 
participate in, encourage and promote the involvement of as many of our people 
as possible in the people's campaign- vuk'uzenzele!… In pushing back the 
frontiers of poverty, we shall do this in partnership with many in our society 
who are ready to lend a hand in the national effort to build a better life . 
The President's call "vuk'uzenzele" or "arise and act", envisions what he 
described as "a massive mobilisation" on the part of the South African public to 
improve "the condition of the most vulnerable sectors of our population." The 
legal community has a crucial role to play in this campaign. It is in this 
spirit of "vuk'uzenzele" that lawyers can play their part to assist the broader 
South African community.
Increasing access to justice for the poor, marginalised and indigent communities 
should be seen by the legal community as an essential component to fulfilling 
their civic duty. In order for this to occur, the legal community must recognise 
the important role it can play by deploying its expertise and skills on behalf 
of the multitudes that are unable pay for the prohibitive cost of legal 
services.
The notion of the legal profession contributing to the broader social good is 
not new. There have been times, particularly during the Roman empire, where the 
very practice of law was regarded as "pro bono." Previously, embarking on a 
career in law was viewed as an honorable calling. Unfortunately, today negative 
perceptions of lawyers as unscrupulous and self-serving pervade our society. The 
hope of the pro bono initiative and Conference is to return to an earlier 
conception of lawyering as profession that works on behalf of the public good. 
Notably, increasing access to justice must be broadly understood as a national 
calling to assist in deepening the democratic gains of the past decade and 
assist South Africa in becoming a more equitable and just society.
Furthermore, the Draft Legal Practice Bill is currently mooting community 
service in section 31, which provides that: 
The Minister may, on the advice of the Council, prescribe legal community 
service, which may include- 
(b) A minimum period of service by legal practitioners.
(2) A minimum period of service contemplated in subsection (1) (b), may be a 
recurring annual requirement upon which continued registration is dependent. 
The Conference provided the legal community with an opportunity to take the 
initiative in carving the role of the private sector in pro bono work. 
2. BACKGROUND
Why a Conference?
The intention of the Conference was to bring together various stakeholders 
within the legal community to discuss initiatives to develop and encourage pro 
bono and public interest work. The hope was that by the end of the Conference a 
new commitment and a consensus on a plan of action by the legal community would 
be developed to engage in pro bono and public interest work. Furthermore, those 
few who are engaged in pro bono service have not received adequate social 
recognition and thus this Conference also provided an opportunity to acknowledge 
them. 
The Conference offered the following:
· Plenary sessions that exposed delegates to the concept of pro bono work
· Practical tools and a framework to assist lawyers in participating in pro bono 
work
· International and national speakers addressed delegates on various models
· Workshops that allowed delegates to develop ideas around an appropriate system 
for South Africa
· A Gala dinner held in conjunction with the Conference 
Lawyers for Human Rights, in cooperation with several associations of practicing 
lawyers in South Africa, hosted the Conference on pro bono work in South Africa 
on the 10th and 11th of May 2002 at the Birchwood Conference Centre in 
Johannesburg. Prior to holding the national conference, Lawyers for Human Rights 
conducted a survey and held a series of regional workshops preparing the 
groundwork for this national initiative.
Pre Conference Pro Bono Survey
In preparation for the Conference, Lawyers for Human Rights conducted a survey 
examining the involvement of law firms in pro bono work among over 
6 000 law firms in South Africa. Of the responding firms (a below-average 
response rate of 2.5%) the majority indicated that they are involved in pro bono 
work, yet only one third consider themselves 'very familiar' with the concept of 
pro bono work, often mistaking it for community service or charity work. The 
findings of the survey indicated that despite the confusion over the concept of 
pro bono work, law firms do want a system, but one that is based on voluntary 
input. 
The majority of respondents reflected that lawyers cannot be forced to render 
services for free and that the desire to contribute to society is the key to 
success and quality. 15% of the respondents indicated that law firms would be 
unable to afford to provide free legal services for the public interest. Those 
firms in favour of a mandatory system (8%) argued that the financial burden 
involved should be spread among all firms through a mandatory system. 
The majority of law firms that indicated involvement in pro bono work already, 
do the following: 
1. Render free services and advice to the poor; 
2. Are involved in the small claims court; and 
3. Take on criminal cases. 
Pre Conference Regional Workshops
Pre-conference regional workshops were held on April 18 2002 at Pretoria, 
Durban, Cape Town and Port Elizabeth and on April 25, 2002 at Johannesburg, 
Pietersburg, Bloemfontein and East London in conjunction with the Practical 
Legal Training Schools. 
The pre-conference workshops and presentations aimed to assess and sensitise 
students, NGOs, law societies and attorneys to the concept of pro bono work, 
initiate discussions on different kinds of pro bono systems and develop ideas 
for a South African model. Discussions centred on whether the system should be 
mandatory or voluntary; what type of work constituted pro bono, who should do it 
and how it should be structured. 
Participants noted that whatever system is implemented, it would require a 
restructuring of the law firm culture in South Africa so that those engaging in 
pro bono work would receive institutional support from their law firms. The new 
mechanism should be marketed by the profession in order to create good publicity 
and ensure support. Students from less privileged backgrounds demonstrated a 
greater sense of duty to the community. 
Concerns were raised on the details of the pro bono system and how it would be 
monitored. Concerns included the state using pro bono work to get out of its own 
responsibilities, the establishment of new bureaucracies and the need for 
feedback after the Conference. 
3. THE CONFERENCE - DAY ONE 
Welcome 
The Conference was opened by Dr Vinodh Jaichand of Lawyers for Human Rights, who 
welcomed all to the Conference and identified two key reasons for the 
timeousness of the Conference. These were firstly, the need to alter the low 
image of lawyers who, "are perceived to be unsavoury and untrustworthy 
individuals who do not seem to have a social conscience." The second reason was 
more practical in that the Legal Practice Bill is to be discussed in Parliament 
soon and that section 31 of the Bill moots community service for legal 
practitioners. Such an eventuality would create a legal responsibility to do pro 
bono work. He highlighted the key objective of the Conference as the development 
of a pro bono model for South Africa. 
Opening Address:
Deputy Chief Justice Pius Langa, a long serving community activist and pro bono 
practitioner stressed the necessity of access to justice in making 
Constitutional Rights a reality. He said that access to justice is key to our 
Constitutional democracy, but, "becomes an empty gesture and makes a mockery of 
the Constitution, if it is not backed by mechanisms that are adequate for the 
enforcement of the right." Acknowledging that it is primarily the duty of the 
state to deliver justice, he added that pro bono work provides, 
the niche which the legal community should claim for itself in the construction 
and development of a South Africa that is as close to our ideals as possible 
…The consequence of this access to justice would be to facilitate the enjoyment 
of other fundamental human rights by the greatest number of people in our 
country.
Voluntary pro bono work provides the legal community with an opportunity to make 
the Constitution work and develop confidence in the courts. Underlying pro bono 
is the notion of community service. 
With these overarching principles guiding the Conference, deliberations moved to 
debates on the future of pro bono in South Africa, beginning with whether South 
Africa should implement a mandatory versus a voluntary system. 
Session 1: Mandatory system versus Voluntary System
In the discussion, cases were made for mandatory, voluntary as well as a mixed 
system. 
Prof. Jeremy Sarkin, of the University of the Western Cape, presented an 
argument favouring intersectoral cooperation that encourages the legal 
profession to take the initiative in developing an implementable mandatory 
system. He concurred with Justice Langa that access to justice is a fundamental 
need for citizens in order to enjoy their Constitutional and other rights, 
Access to legal aid is the basis upon which many depend for having their rights 
enforced and protected… This is particularly critical for the poor, who often 
depend on legal entitlements to meet basic needs such as food, housing and 
medical care.
His presentation included an overview of legal aid in South Africa today, 
looking at the role of government, tertiary institutions, NGOs and the private 
sector. Although some private lawyers do provide pro bono service, Sarkin 
asserted that, "a wide gap persists between professional rhetoric and 
professional practice." In addressing this gap, he observed that, "voluntary 
programmes have not really provided much in the way of access to legal 
services." He concluded, "if the legal profession does not take positive steps 
to impose legal aid obligations on its members, it will lose the opportunity to 
do so on its own terms." 
Prof. Sarkin's input was followed by Mr Andre Van Vuuren of the Law Society of 
South Africa who made an argument against a mandatory system. He cited 
'practical' issues in particular the issue of getting cooperation from legal 
practitioners. The practical issues included the inability of the legal 
profession to absorb legal practitioners, the burden on small firms and the 
burden of student loans facing recent graduates. Mr Van Vuuren encouraged the 
use of incentives over and above the moral obligation as the most effective 
mechanism to ensure widespread involvement. 
Advocate Sharise Weiner spoke on behalf of the General Council of the Bar of 
South Africa. Referring to the limited participation in pro bono work, she said 
that, "many do not perform pro bono work at all because of the lack of a 
mechanism to facilitate pro bono." She stressed that this mechanism is urgently 
needed as it is important for the Bar to play a role in delivering justice for 
all, an aim that is elusive without pro bono. The active participation of all in 
the legal profession was identified, especially that of experienced advocates. 
Compulsory pro bono should not just include court appearances, but a wide range 
of legal services. The current legislation seemed to be moving in the direction 
of a compulsory system and therefore there would be a need for a coordinating 
agency to screen cases. 
Discussion centred on the capacity of firms and the need not to overburden 
smaller firms struggling to get on their feet. Concerns were also raised that 
lawyers would be swamped with cases as a result of pro bono work. Mechanisms 
would need to address such concerns. 
Session 2: Legislative and Policy Initiatives
Geoff Budlender of the Legal Resources Centre began the session by affirming the 
Constitutional imperatives of providing pro bono work when he said, "My own view 
is that pro bono is essential because it is essential for the development and 
entrenchment of our new constitutional order, which is still quite fragile." He 
asserted that our democracy is a precious gift that was fought for and in need 
of protection. Now is the time to strengthen it as we face, what he called, good 
times in our history, particularly for the legal system. In this regard, we have 
a government, which respects the courts and obeys its orders even if it finds 
them disagreeable. He cautioned that our country and our courts will only 
sustain the 'bad' times, "if South Africans experience the new constitutional 
order as meeting their basic needs." Pro bono work is therefore, "a deliberate 
step in building the society we want." 
Lawyers are going to have to be convinced of this argument considering that in 
the survey conducted by LHR prior to the Conference, only one respondent 
indicated that pro bono work should be undertaken to protect the integrity of 
the system. 
Geoff Budlender argued that compulsory pro bono is unlikely to work and could 
breed contempt for the law even in those inclined to comply. He concluded, 
"there is a lot of untapped energy and goodwill in our profession. We need to 
build it, release it and make the best use of it for the benefit of all of us." 
(See appendix for detailed recommendations). 
Minister Penuell Maduna, Minister of Justice and Constitutional Development, 
largely agreed with Geoff Budlender and also expressed his optimism in the legal 
professions potential to participate in pro bono work. With regards the 
President's vuk'uzenzele call, he referred to the 1955 Freedom Charter which was 
developed during the darkest hours of South African history when the defiance 
campaign was underway. The vuk'uzenzele campaign calls on voluntarism as a link 
with the 50th anniversary of the defiance campaign. The new system in South 
Africa was born out of the sacrifice of South Africans and is articulated in the 
new Constitution. He acknowledged that the primary responsibility for access to 
justice lies with government and thus the creation of the Legal Aid Board and 
other initiatives, but further assistance is needed. He said that they would 
rather that professional legal bodies take up the call, as opposed to legislated 
pro bono obligations, which would result in people trying to avoid it. The 
Minister referred to the proposal in the Bill where he can make regulations that 
prescribe pro bono work. He however further elaborated that this was not 
necessarily what the Department of Justice would prefer happens and offered an 
open invitation for the legal community to take up the initiative to help to 
make the system better. 
Odette Geldenhuys of the Legal Aid Board spoke of the depth of the legal needs 
of the poor and proposed a national legal internship programme as a contribution 
in alleviating this need. She referred to unemployment statistics and that 41% 
of South Africans who are unemployed qualify for legal aid. In addition, 42% of 
South Africans earn less than a R 1000 per month and therefore also qualify. 
These figures provided an indication of the potential legal needs in the 
country. The Legal Aid Board has historically done more criminal than civil 
work, but there is a huge obligation in meeting civil matters, which include the 
rights of children, issues relating to domestic violence and land issues. The 
challenge facing the Legal Aid Board is to increase service delivery without 
increasing the budget. The proposed internship programme was suggested as 
compulsory to ensure that the 2000 new graduates service the needs of the poor 
at the State expense. 
There was some discussion around whether those providing legal services through 
NGOs and the Legal Aid Board should also do pro bono work. Some suggested that 
as no fees are charged, it already constitutes pro bono, others suggested that 
all legal service providers should be obliged to do pro bono and that state 
workers should not be excluded from pro bono commitments. 

Session 3: International Models
The United States
The discussion was opened with an exciting live broadcast from New York City. 
Evan Davis, the President of the Association of the Bar of the City of New York 
and Maria Imperial, the Executive Director of the City Bar Fund, engaged with 
the Conference on the experience of the New York pro bono model. Evan Davis 
spoke of this model as being a three-legged stool. The first is the courts, 
which are a critical component in ensuring access to justice; the second is that 
of legal services which get limited government funding and the third is the 
organisation of the bar for the free provision of services and public interest 
litigation. He said, "the government is entitled to expect the profession to 
contribute to the solution of providing legal services. The New York Bar 
encourages 20 hours per year, but in reality most provide closer to 15 hours. 
There is a need to keep the pressure up."
Maria Imperial then briefed the Conference on the legal community's response to 
the September 11th attacks on New York and the lessons learned. These included 
lawyers assigned to families and businesses to facilitate meeting legal needs. 
Working through social workers and NGOs, volunteers were placed at emergency 
response centres. The use of technology such as a hotline, website and email 
communication assisted in cases being immediately placed. 
Staying with issues from New York, Joan Vermeulen of Fordham University provided 
some historical background to the "clearinghouse" pro bono model. She mentioned 
that most of the US Constitutional Jurisprudence was done through pro bono work 
as it was seen as an opportunity to influence justice. Despite the long history 
of pro bono contributions, it was only in the 1960s and 1970's, with the civil 
rights movement that pro bono came into it's own. The profession was forced to 
rethink in light of cutbacks to legal assistance programmes and the withdrawal 
of support for public interest law. It was in this context that the New York 
Lawyers for the Public Interest (NYLPI) was established in 1976.
Charged with developing a pro bono mechanism, they adopted the clearinghouse 
model that oversees referrals. The NYLPI has four functions, which are outreach, 
screening, referral and monitoring. Outreach is done through NGOs and non-profit 
organisations. Screening ensures that firms and lawyers are not deterred from 
doing pro bono work through irrelevant cases. Referral and placement brings the 
client and the lawyer together and monitoring is done to evaluate the 
effectiveness of the work. 
The NYLPI has worked on issues relating to conditions in prisons, mental homes, 
the quality of education, issues of social service, challenging racial 
discrimination in housing, services to the elderly etc. Although they have made 
a positive contribution, the unmet legal needs of the poor still outstrip the 
organisation. To support pro bono lawyers, the organisation developed training 
programmes and looked at broadening their scope beyond systemic problems to 
include individual needs. 
Chile
Moving south, Juan Pablo Olmedo Bustos shared his insights into the 
establishment of the Pro Bono Foundation in Chile. He began by distinguishing 
between pro bono and legal aid work and emphasised that pro bono is from the 
private sector, it is a social responsibility and an ethical responsibility. Pro 
bono work is not isolated, but intersectoral and includes NGO's, universities, 
law clinics etc. 
He spoke of the process of forming the Pro Bono Foundation as an independent 
organisation, the selection of its Board of Directors, the Advisory Board and 
getting the commitment of members of the legal community. With regards ownership 
and buy-in of the private sector, he advised the need to create prestige to pro 
bono involvement and working with the expertise, capacity and interests of the 
law firms. Furthermore, he stressed the importance of gaining the confidence of 
the NGO sector as necessary to bridging divides. He concluded that pro bono work 
is a privilege and not an obligation, but that it will not succeed if the 
initiative does not come from lawyers themselves. 
Sweden
Louis Bjurwill from the International Commission of Jurists in Sweden gave a 
brief overview of the contributions by the legal community in Sweden. Starting 
in 1978, pro bono work in Sweden is largely delivered through offering legal 
advice to the community through advice centres that are open one evening per 
week. The advice at the centres is not only legal, but includes referrals to 
social welfare organisations. The service is organised by the Swedish Bar 
Association, which has also dealt with disciplinary issues where pro bono 
lawyers gave harmful advice. The Bar has an insurance fund to protect it from 
damages. In closing, she emphasised that the service has helped many people, 
particularly women, it has gained positive media coverage and thus enhanced the 
reputation of lawyers in Sweden. She said, "Where there is a will there is a 
way." 
Zimbabwe
In concluding the international models, we moved closer to home with an input 
from Albert Moosa Ruwa of the Legal Resources Foundation in Zimbabwe. He 
informed the Conference of the mandatory system enforced in Zimbabwe whereby pro 
bono work is administered through legislation. Failure to deliver results in a 
contempt of court procedures. According to Mr Ruwa, this has led to tension 
between the legal profession and the authorities. The demand for pro bono work 
in Zimbabwe is high among the disadvantaged and is largely met in the rural 
areas through the NGOs. A paid pro bono system exists for public interest 
litigation where funds are sourced from donor funding to take Constitutional 
cases, to challenge undemocratic legislation and abuse of power by the 
authorities. The client does not pay lawyers who take on these cases. A 
contingency fee programme is also in place where the lawyer gets a share of the 
proceeds in the event of successful litigation. 
Albert Ruwa spoke of the current problems in Zimbabwe, which reminded the 
delegates of the words of Geoff Budlender, who had previously spoken of the 
potential 'bad' days in history. The recent state sponsored violence had led to 
the closing of 6 advice centres as the staff were assaulted for informing rural 
people that their vote was secret. Further, staff could not access the rural 
areas without providing ruling party cards. The crisis in Zimbabwe has left the 
nation divided and threatens the rule of law. He stressed that pro bono work is 
worth supporting, but needs to be seen within a multi-pronged approach. 
The Gala Dinner and Pro Bono Awards
The inspiring discussions of day one of the Conference were followed by a gala 
dinner. In the spirit of the Conference, the gala dinner was held to honour 
members of the legal profession whose commitment to pro bono work has brought 
pride to the profession as well as had profound implications for social justice, 
in particular during the apartheid days. 
The dinner was hosted by television personality, Gerri Rantseli, who added both 
glamour and content to the event. After entertainment by a community jazz band, 
Vinodh Jaichand opened the evening and introduced the keynote speaker, Judge 
Navsa. The Judge used the opportunity to highlight the important contribution 
pro bono work has made to the development of our constitutional democracy and 
the need for ongoing commitment to ensure the entrenchment thereof. He spoke of 
the shift in values since the decline of apartheid and promoted a return to the 
values of community service essential to the development of South Africa. 
The prestigious awards were then presented to Judge Arthur Chaskalson and George 
Bizos for their lifetime contributions to pro bono work. Judge Chaskalson was 
unable to attend, but sent a message of thanks to the Conference. George Bizos, 
in acknowledging his award, emphasised the benefits of being engaged in pro bono 
work. Through a number of heart warming and humourous anecdotes, he spoke of how 
much he had learned through his engagement with community members young and old. 
He spoke of the unintended consequences of his own pro bono work in building his 
reputation and thus inadvertently attracting more paying clients. 
Gerry Rantseli captured the importance of pro bono work as an often life-or- 
death contribution. In her closing comments, she recalled her days as a young 
activist about to embark on a protest march and that the one number that all the 
youngsters would memorise was the number of their pro bono lawyer in the event 
of their arrest. 
The evening provided a warm informal atmosphere in which discussions continued 
until late in the evening. 
4. THE CONFERENCE: DAY TWO 
Informed by the inputs from day one, the second day of the Conference launched 
into developing a model for South Africa. Despite being held on a Saturday, day 
two of the Conference was well supported by the Conference delegates revealing 
the commitment and enthusiasm in contributing to the way forward. 
Session 4: Developing a Model for South Africa
Willem de Klerk, from Witwatersrand Univerisity, based his presentation on the 
assumption that the Conference was no longer debating whether a pro bono system 
was needed, but how best to implement such a system. He acknowledged that there 
was still no consensus on what exactly constitutes pro bono work and encouraged 
that clarity be sought prior to developing a major pro bono initiative. This 
however should not delay the process moving forward and in this regard he 
suggested 10 principles to govern the new system. (These should be seen in 
conjunction with the recommendations section of this report.) 
According to Willem de Klerk, a pro bono system should: 
1. Be integrated- it should include all in the legal realm and not just 
candidate attorneys; 
2. Have clear eligibility criteria- this could include a means test, a thorough 
referral system that would also look into the type of matter. 
3. Render services for free; 
4. Have a disbursement policy- the client could pay, for example, the revenue 
fees or they should be waived. Other experts could also contribute free services 
e.g. medical expertise, psychologists etc. 
5. Render high quality service- if pro bono work is second rate, it will fail; 
6. Deal in appropriate cases- this will ensure the proper utilisation of the 
experience and expertise of the pro bono lawyer; 
7. Be flexible- this could include hosting legal workshops, printing pamphlets 
etc; 
8. Limit referrals; 
9. Be monitored- referring agencies could follow up to ensure continuity and 
coordination; 
10. Give recognition for services rendered- this could be done through an annual 
pro bono awards, published results or other forms of recognition. 

A Clearing house model was suggested beginning with a pilot project utilising 
the following model: 

Client Base
Legal NGO's Law Clinics Paralegals LAB/ Justice Centres

Clearing House

Attorneys Advocates Experts 

He suggested beginning with a voluntary system to give the legal community the 
chance to prove themselves before regulating the system. 
Building on the model presented by Willem de Klerk, Antony Osler of Lawyers for 
Human Rights provided a report on the countrywide process that was held prior to 
the Conference. Participants in this process included students, NGO's, legal 
service providers etc. A number of recommendations emerged from these 
discussions including: 
Ψ Agreement that all in the legal profession be involved in providing pro bono 
services; 
Ψ Pro bono work be included in the rehabilitation of disbarred practitioners; 
Ψ Large firms assisting smaller firms; 
Ψ Consensus that all legal work be included e.g. advice, referrals and corporate 
work; 
Ψ The use of incentives such as publicity, recognition, tax rebates/ deductions, 
exemption from levies/ fees, a requirement for getting government contracts, 
insertion into legal degrees and assistance with the repayment of student fees. 
Others suggested that incentives were not necessary as the focus should not be 
on what can I get out of this, but what can I give? 
Antony Osler concluded that he had been involved in a mixed practice for years 
and that it had enriched his life. He was positive that the Conference was a 
beginning in that it sent a signal about the legal profession and their 
commitment to making the world a better place. He added that pro bono could 
indeed make money as it built the reputation of the lawyer, which in turn 
attracted more work. The personal satisfaction of pro bono work is unmatched. 
5. RECOMMENDATIONS
Breakaway group report backs
The Conference participants broke into groups where consensus was reached on a 
number of areas: 
Ψ The need for a new model: All groups agreed that the current system of 
informal pro bono work, coupled with Legal Aid, work done by NGOs and law 
clinics is inadequate to address the country's legal needs, particularly the 
needs of the poor.
Ψ The type of system: On whether a mandatory or voluntary model would be most 
appropriate, there was general agreement that a mixed system would be the most 
viable. This could include mandatory internships and community service by law 
graduates. Concern was raised that the current system is voluntary and that 
members of the legal community are not participating. Voluntarism was described 
as unreliable, but delegates felt that with mechanisms in place to foster pro 
bono it needs to be given a chance. 
Ψ Recognising that the system will only succeed with the active support of the 
legal profession, the groups discussed ways to engage with the profession in 
order to get their support. A number of suggestions were made including running 
workshops, issuing certificates for pro bono work, hosting and advertising a 
national awards ceremony, incentives and publicity such as a newspaper 
sponsoring a pro bono supplement. One suggestion proposed having the Law Society 
play a consulting role, develop a plan of action to create committees and set 
frames for a pro bono mechanism. Communication could further be facilitated by 
the pro bono website with a database. 
Ψ Those favouring a mandatory system suggested a point system that recognised 
various types of pro bono work. The acquisition of points could be a requirement 
for fidelity points, with suspension as the sanction. Another suggestion was 
that all commit to minimum pro bono hours, but concern was raised over how to 
implement, monitor and pay for it. There were fears that with a mandatory 
system, the quality of the work will suffer. 
Ψ Those favouring a voluntary system suggested the implementation of the 
clearinghouse model, coupled with internship programmes. Concern was raised as 
to who would service the rural areas. The use of existing resources was proposed 
as a way to localise initiatives. Incentives were raised as a carrot to 
encourage participation. It was suggested that the Law Society has a vested 
interest in making a voluntary system work. 
Ψ With regards practical tools that can be implemented in the short term to kick 
start this pro bono initiative, various recommendations were made: 
Ψ Articles in lawyers journals
Ψ Workshops with attorneys and advocates
Ψ Consultation with partners in law firms
Ψ LSSA to provide a data base of areas of expertise
Ψ Pro bono internships should be considered as articles
Ψ Update the current web site
Ψ Host consultative meetings with various stakeholders
Ψ Form a task team to further develop a pro bono model
Ψ Initiate a pilot programme to be coordinated by the task team. A clearinghouse 
model could form the basis of the pilot project. 
(See appendix for detailed recommendations by Geoff Budlender) 
Session 5: The Way Forward 
Rapporteur: Conference Summary 
With the Conference drawing to a close, it was important to reflect on 'why' 
this Conference. The discussions concurred that above and beyond being a 
Constitutional imperative, access to justice is pivotal in the delivery of human 
rights. Being a lawyer needs to be understood as a national calling to assist in 
deepening the hard fought democratic gains achieved thus far. Access to justice 
is key to 'making human rights real'. Often communities express a growing 
cynicism of our emerging democracy with comments such as, 'we cannot eat human 
rights.' The role lawyers play in fulfilling this was aptly captured by Prof. 
Jeremy Sarkin in highlighting that the poor depend on legal entitlements to meet 
basic needs such as food and housing. Lawyers have a monopoly on legal services 
and thus being a lawyer is a privilege that comes with obligations. 
The Conference participants agreed that there is a need for pro bono work. There 
was acknowledgement that the state cannot meet the legal needs on its own and 
that there was therefore a difference between legal aid and pro bono work. 
Although resources do exist through legal aid, there is a gap that needs to be 
filled. 
It was acknowledged that this Conference was the beginning of a process and when 
reviewing the objectives, it did indeed meet them through:
Ψ Exposing delegates to the concept of pro bono work; 
Ψ Developing practical tools and a framework to assist lawyers to participate in 
pro bono work; 
Ψ Providing information on international and national experiences of various 
models; 
Ψ Developing ideas around an appropriate system for South Africa. 
There was consensus on the need for pro bono work and thus the discussions 
centred on the mechanisms workable in the South African context. The Conference 
highlighted a number of exciting opportunities to be explored by the legal 
profession. 
The first opportunity was that of proactive interventions in what was described 
as a 'sunny' period in the history of South Africa. Geoff Budlender pointed out 
that the current context of respect for the law, compliance by government and 
the relatively new legal context gave lawyers the opportunity play a role in 
entrenching South Africa's Constitution. This was confirmed by Albert Ruwa, who 
in a presentation on Zimbabwe spoke of the obstacles and flagrant violation of 
the Constitution currently plaguing attempts of human rights activists across 
the country. 
Another opportunity was the ability of the legal community to proactively 
respond to President Mbeki's Vuk'uzenzele call. This would allow the legal 
profession to set an example to others in the private sector as well as provide 
an opportunity to enhance the credibility of the justice system, the 
Constitution and confidence in the courts. It is therefore good for the legal 
profession as a whole in that it not merely gives credence to the social 
conscience held by many lawyers, but enhances the overall environment in which 
they work. 
Further, with the legal profession being proactive in developing a pro bono 
mechanism for South Africa, it will preempt the Minister having to regulate and 
allow the profession to plot it's own path on how the pro bono system will look 
in South Africa. The Minister affirmed that he does not want to prescribe the 
nature and mechanisms for pro bono work and therefore left the Conference with 
an open invitation for the profession to pick up the baton and run with it. This 
was affirmed by Justice Pius Langa who indicated that pro bono work provided an 
opportunity to create, "the niche, which the legal community should claim for 
itself in the construction and development of South Africa."
The Conference discussions reflected consensus of the need for a pro bono 
system, but the need for ownership, responsibility and accountability of legal 
bodies and firms was identified. It was acknowledged that if the system was not 
mandatory, there would have to be effective rules or social and economic 
incentives to ensure compliance. Pro bono work should however not be seen as an 
obligation, but a privilege. 
The benefits to the profession as a whole were highlighted: these include better 
experience, better press coverage, enhancing the reputations of lawyers and 
legal firms, the opportunity to more formally recognise what is already being 
done, the opportunity to fill gaps such as civil cases that are not being taken 
up by the legal aid board; the opportunity to play a role in emergency 
situations such as the Ellis Park Football tragedy, the opportunity to bridge 
the gap between the private sector, the government and the NGO sectos and so the 
list continued. 
The Conference did not therefore continue the debate on whether a pro bono 
system was needed, but what models and mechanisms would be appropriate. In this 
regard a number of presentations, from local and international speakers raised 
issues to consider. These included considering a clearing house model, pro bono 
committees, incentives, mixed systems, internship programmes, the role of 
technology and most importantly the need for intersectoral cooperation. The need 
for pro bono work to fit within a chain of services was identified and it was 
stressed that it is not a burden on the private sector, but a partnership with 
the state and NGO's. 
Fears of lawyers being swamped with cases were discussed. The Conference agreed 
that a voluntary system was ideal, but that it should be given a grace period to 
assess participation. It was noted that the Minister could regulate should a 
voluntary system fail. 
In assessing where the Conference should proceed it was decided that structures 
were needed to coordinate the system. Immediate steps included the formation of 
a task team with representation of all the partners, which would meet before the 
end of July. The task team would take the mandate from the Conference to work 
out time frames and begin the necessary process of consultation with legal 
bodies and firms. These meetings would include individual meetings, meetings 
with the Bar Council and law societies. The direct engagement would be with the 
aim of getting principled agreements. These meetings could also be followed up 
with workshops to educate pro bono lawyers. 
In conclusion, the controversial issues of reimbursement of lawyers for their 
time came up repeatedly during the Conference. These issues were offset by 
insightful inputs by Judge Navsa and George Bizos at the Gala dinner and by 
Advocate Antony Osler. All spoke of the multifaceted forms of enrichment 
including that of enhanced professional reputations, better press coverage and 
personal enrichment. All of these gains were made through lessons learned and 
experience gained through pro bono clients. Many at the Conference had spoken of 
the economic poverty that pro bono work can assist in alleviating, what Judge 
Navsa, George Bizos and Antony Osler offered was the opportunity for lawyers, 
who may find spiritual poverty within their profession, to nourish themselves 
with pro bono work as the 'soul food for lawyers'. 
The Conference entertained proposals, it set a process in motion and provided 
sufficient ideas and information for the task team to sift through, analyse and 
take forward. 

Statement of Commitment
Dr Vinodh Jaichand presented a draft Statement of Commitment to the Conference. 
Subject to minor amendments, the Statement was adopted as follows: 
Recognising that the majority of South African live in conditions of poverty and 
inequality; 
Noting that most people in South Africa cannot afford the cost of legal 
services; 
Accepting that the legal community has an ethical and professional 
responsibility to assist in bridging the access to justice divide that exists in 
our country; 
We, the delegates of this Conference, as members of the South African legal 
profession commit ourselves to promote and provide pro bono legal services to 
the marginalised, vulnerable and indigent individuals and communities of our 
country. 
Closure
In closing, Advocate Solly Sithole, the Chairperson of Lawyers for Human Rights 
expressed his pride at the work of Lawyers for Human Rights, the organisers of 
the Conference. He reiterated that this Conference lays a foundation upon which 
to improve not only access to justice for the poor and marginalised, but also 
opportunities for those in the legal profession to 'arise and act' and make a 
positive contribution to the development of a human rights culture in South 
Africa. 
Appendix suggestions:
Pre Conference workshop reports
The Conference Programme
Speeches
Recommendations by Geoff Budlender, Legal Resources Centre
Any other documents 

APPENDIX 
Recommendations by Geoff Budlender, Legal Resources Centre
1. Our profession, through representatives whom we elect, should recognise that 
a stipulated amount of pro bono work is an ethical obligation of practising 
lawyers. The Cape Law Society has suggested 40 hours per year. It is an ethical 
obligation for all the reasons I gave when I started and because it is necessary 
for the maintenance and strengthening of the foundations of our legal system- in 
the words of the DCJ, it is necessary in order to make the Constitution work. 
2. This should be an obligation of all practitioners to the most senior, with 
the possible exception of newly qualified practitioners. There is the question 
of whether you can 'buy your way out' through cash payments or get others in 
your firm to provide it. This should be for 50 hours of your regular rate. 
3. The profession should find ways of encouraging and honouring this work. 
Perhaps a system of awards, which the Americans do so well. There are many ways 
of doing it. Should also look at financial incentives e.g. waivers of fees; tax 
incentives- the problem is the high cost of monitoring. 
4. Pro bono work should be broadly defined, but limited to legal services to 
those who cannot afford it, and other forms of public service, for example 
service as a Commissioner in the Small Claims Court, but the essence would be 
legal services, for example it would not include membership of a school 
governing body, or the board of a charity, but it might include legal services 
given free to the organisation. 
5. Each lawyer should be required to file a brief annual report with his or her 
professional association setting out what he/she has done to comply with this 
requirement. The report should contain enough information to make it possible to 
check its veracity. And the report should be a matter of public record- 
"sunshine is the best disinfectant." 
6. Need a referral system- particularly for advocates who practice on the 
referral basis, but we should avoid compelling all pro bono work to go through 
this system. It will very often be more convenient for clients to go directly to 
attorneys. We should not introduce a bureaucratic hurdle to this. 
7. We should recognise that those there are some sorts of pro bono work, which 
require a much greater commitment, and contribution- I will call this public 
interest pro bono work because it is designed to have a larger impact e.g. a 
major public interest litigation. That should be entirely optional, but we 
should find ways of encouraging it because of its impact. 
This could be done by setting up a membership organisation, which would: 
Ψ Recruit participants to this work; 
Ψ Receive requests for representation in major cases; 
Ψ Screen and assess the cases; 
Ψ Distribute appropriate cases to the members
Ψ Promote the sharing of information and expertise. 
A fund could be set up to cover disbursements- often a major problem in big 
public interest cases run on a pro bono basis. This could be a revolving fund 
and could be replenished when costs are recovered. 


 
The need for Pro Bono work by lawyers in South Africa
Probono Conference
Aims of the Conference on Pro Bono work
Report of the conference
Pre Conference workshops
Research on models
Possible tools 
Commitment of the legal profession
Register as a Pro Bono Lawyer



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