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Wednesday 16 January 2019
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Legal costs and Lady Justice

To ensure that all are equal under the law Lady Justice is blindfolded so she does not see and consider who is rich, who is poor, who is important and who is not, but treats all as equal. That is the noble idea that the free world evolved as personified by this great lady.

Regrettably this is not the case for perhaps the majority of our people in this region. The same inequality that exists generally in broader society also presents in the supposedly sacred halls of justice. As they say “money talks” and also apparently buys justice. Well so it would seem. There can be no doubt whatsoever that, but for the fact that Oscar Pistorius was extremely wealthy, he would have been jailed for a very long time in no time at all, on the simple facts of the matter. Instead, he nearly got away with murder and the case is still playing out as a highly confusing pantomime of sorts.

The problem for poor people is costs; legal costs. In this region there are wide disparities as regards the socio economic status of humans. Most are poor. We are world leaders as regards the gap between rich and poor. Most fall in the “poor” group. However, lawyers fall into the rich group; and they charge accordingly.  Lawyers’ fees are codified by law and regulations that regulate what fees are chargeable. However, these tariffs are devised and set by the legal profession, primarily for the benefit of the legal profession; not for the benefit of the general public, except incidentally.

The result is that there are too many humans that are denied access to proper legal representation simply because they are poor. It should be noted that legal fees are now running at a level that even so called middle class people are having real difficulty as regards affordability. So we have seen the advent of legal insurance just as you have car or medical insurance. In exchange for payment of a supposedly modest monthly premium you will be able to afford a lawyer should the need arise. That is the theory and promise, as always. Please feel free to imagine that the problems for which insurance houses are notorious are also represented as regards legal insurance. In any event, poor people cannot afford to pay insurance premiums. I was involved in a case where a company was refusing to compensate the dependents of a father breadwinner after he had been negligently buried alive on an excavation site. We won the case by taking the unusual step of calling the CEO of the defendant company as a witness and he explained that they had been only too willing to pay as the deceased had been a wonderful worker and the company fully empathised with his family but their insurers had instructed the company not to pay.

As regards criminal case we have systems of “legal aid”. In simple terms persons accused of more serious crimes are provided with the services of a lawyer at no cost. This is the State attempting to be altruistic about the principle of equality under the law. It is problematical on account of the general relative inexperience of the lawyers on legal aid panels and their need to get through as many legal aid briefs as possible as the fees are relatively low.

It is also the case that the region has been hit with the “contingency fee” phenomenon.  Lawyers offer their services on a “no win/no fee basis”.  Just for a start the experiences of the Road Accident Fund of South Africa proves that this American import should actually be banned outright. It lends itself to professional deviance on an almost pandemic scale as it encourages fraud and a parasitic operational culture and mode on the part of lawyers.

To all this there is a solution. I call it the Dennis Robinson solution.  Robinson was a law professor (later a Judge) at the University of Rhodesia/Zimbabwe. He set up a legal aid clinic that we ran on Saturday mornings in Samora Machel Avenue. Experienced lawyers and Advocates took turns leading law students in assessing claims by poor people. If the claim had merit a lawyer or Advocate from a roster of participating practitioners was assigned to act free of charge for the person. Most of the Harare lawyers and Advocates were voluntarily on the roster.

In this way no deserving person is denied access to justice. He or she is properly represented. Law students get the benefit of practical learning. The system does not cost the State (taxpayer) a cent. An avenue exists for law firms to discharge a noble social responsibility. It is a win-win solution for a very real issue of social justice.
Now who is going to champion this???

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