IT SEEMS entirely apposite that ProBono.Org has the street address of Women's Jail, Constitution Hill; free legal work in SA may have had its roots in the criminal domain, but for services in matters of civil and public interest today, all roads lead to ProBono.
Odette Geldenhuys, founding director and board member of ProBono, says there were a lot of lawyers doing "good legal work, struggle work" pro bono in the 1980s and 1990s, all aimed at ending apartheid, but it was all funded by overseas donors. "As a result, the concept of lawyers doing free legal work outside of the political arena wasn't really developed, but even in the 1980s there was a need for services around labour laws and human rights issues, pass laws and land rights, many of which were handled by the Legal Resources Centre."
Geldenhuys was working as a lawyer during that time and allows they were "really spoilt and cocooned to an extent" as they were busy and externally funded, so didn't think outside of the box too much.
The Legal Aid Board (now Legal Aid SA) was established back in the 1960s as a state- funded institution - which it still is, although the pallor of the poor it helps has changed - but its focus soon became almost entirely criminal defence work.
"Part of the change agenda after 1994 was about increasing access to justice. We could build more courts, have lawyers do community service (which may become a reality soon) and we were throwing around ideas about pro bono work as done overseas," says Geldenhuys. "They were all positive things, but just as we were looking at increasing access to justice, the overseas donors were decreasing or withdrawing their funding."
In about 2001, Lawyers for Human Rights decided to have a conference about the concept of pro bono work, specifically addressing the civil side in terms of family law, land issues, healthcare, constitutional rights and the environment.
"About 50 nongovernmental organisations (NGOs) rocked up - and about thee lawyers," says Geldenhuys. "So we knew we were on to something!"
Lawyers for Human Rights and the Law Society started a website at which lawyers could sign up, but with nobody driving it, it died a quick death. ProBono's website is the rather odd, but accurate, www.probono-org.org.
The next impetus was Webber Wentzel, which in 2003 decided it was time to have a public interest department, started by Moray Hawthorn, one of ProBono's founding members.
"This wasn't as a 'nice to have' but a serious business department with a director, offering appropriate work for free," says Geldenhuys.
The move led to other firms discussing the same thing en masse - lawyers who were often opponents were now obliged to sit at the same table and play nice. They quickly realised the pro bono field was one where they couldn't afford to be competitive.
Meanwhile, Atlantic Philanthropies, that great donor to so many great initiatives in SA, undertook a feasibility study in 2002 to look at the need for something akin to the "pro bono clearing houses" they have in Australia and the US. The study showed it was needed as long as it could be properly managed.
In that same year, Geldenhuys left the legal world to make films, as one does, but in 2005 she decided she should "put one foot back in it". Hawthorn, a friend and former colleague, suggested she join one of the meetings - the same meetings of like-minded lawyers being held for years by then.
It was at this meeting, several years after their study, that Gerald Kraak of Atlantic Philanthropies said they were prepared to fund a pilot project if the firms at the meeting were prepared to support it. The answer was an unequivocal yes.
"I started and ran the project for a year," says Geldenhuys. "It was just me and a computer from Atlantic Philanthropies' offices. Due to my contacts with nongovernmental organisations and my Legal Resources Centre days, cases started coming in. A year later Atlantic Philanthropies agreed to four-year funding."
Today, ProBono's funders comprise an impressive list which includes some of the country's top legal organisations: Andrew Roberts Memorial Fund, Anglo American Chairman's Fund, Bell Dewar, Bowman Gilfillan, Cliffe Dekker Hofmeyr , Deneys Reitz, Dewey and LeBoeuf, the Johannesburg Bar Council, Johannesburg Legal Centre, LegalWise, Eversheds, The Atlantic Philanthropies, the United Nations Refugee Agency, Webber Wentzel, Werksmans, Claude Leon Foundation, The Wartenweiler Trust, L Wilson Trust and the Open Society Foundation.
ProBono has the capacity to send requests to more than 50 law firms in Jo burg and about 800 advocates at the Jo burg Bar. It also co-ordinates ProBono Law, a show on hosted Radio Today by Patrick Bracher of Deneys Reitz, which focuses on public understanding of the Constitution and bill of rights.
Geldenhuys calls ProBono a matchmaker: "Essentially, we match genuine legal need with the appropriate legal resources."
And a genuine case needs to be more than just a fight between neighbours, there needs to be some public interest or something that feeds into civil society.
The initial consultation with ProBono can be up to five meetings as colleagues, who are all lawyers, and sometimes external lawyers are consulted before determining whether or not a case has merit.
A means test of up to R5000 a month income is undertaken, but if a case is of a serious nature or has sufficient public interest, ProBono will facilitate free legal services without it. Such a case is the recent Sonke Gender Justice Network versus Mr Julius Malema in the Johannesburg Equality Court.
Sonke approached ProBono about Malema's statement that started with "when a woman didn't enjoy it, she leaves early in the morning", and ended with "you don't ask for taxi money from somebody who raped you".
Chris Todd of Bowman Gilfillan litigated the case, facilitated through ProBono, on behalf of Sonke, and won.
The Equality Court decided the statement "amounted to hate speech and/or harassment in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act".
Malema was ordered to pay R50000 to People Opposed to Women Abuse and to apologise.
He hasn't done either and - take this as you will - is appealing.
"Sonke bravely initiated the case before going to ProBono. At the first hearing they didn't have lawyers and Malema arrived with representation. They got a postponement and went to ProBono, who came to us," says Todd, who confirms that Bowman Gilfillan is fully committed to representing Sonke as far as the appeals process goes. Like all cases taken on through ProBono, the commitment is unequivocal, as is the quality of services.
"When you take a pro bono case you can't give second-rate services because there's no fee-paying client," says Todd. "There is no compromising in any matter."
ProBono also runs three legal clinics at its offices every week around refugee law, HIV/AIDS and family law with the appropriate legal firms, as well as working off-site with three branches of Hospice in the greater Soweto area with Eversheds and Deneys Reitz, usually around issues of wills.
The demand for ProBono's services will see its Hospice work expand and they are opening a Durban branch next month. Geldenhuys is moving there to open and run the office and learn to surf.
"The number of law firms we can access will increase, and I expect the type of case we take on will differ. KwaZulu-Natal is far more rural and HIV far more prevalent, so I'm sure our matchmaking role will be a different and busy one.
"For instance, I've been told stories of companies employing specialist organisations with sniffer dogs to sniff out stowaways on ships. Apparently they're sometimes found - then never heard of again, which obviously falls under our work with refugee law."
No surfing medals are expected soon.
Source: BD Live
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