1. The Emergence of Antiapartheid Movements

It was against this backdrop of exclusion, injustice, and repression that antiapartheid movements and organizations were established.Footnote ¹¹ Similarly, CAOs were formed by community members out of the need for a space in which to mobilize against the apartheid regime, as well as out of a profound distrust of a judicial system that endorsed racially exclusive legal structures. For blacks, the law was not “a body of rules which their elected representatives [had] conceived in Parliament, but a repressing system imposed without consultation and enforced by an array of instruments of coercion – the army, the police, and the legal administration machine.”Footnote ¹² Some CAOs were, in fact, initially conceived as African National Congress (ANC) constituency offices,Footnote ¹³ helping to address the specific injustices of the time, such as the problems of being politically associated, the dom pass, and the consequences of forced removals.

Alongside the CAOs, Legal Aid South Africa (LASA) was founded in 1969 as a state-funded independent statutory body (established under the Legal Aid Act [1969]) particularly to provide means-tested free legal assistance via a judicare system for defendants in political trials. It was established because the government had received criticism following the banning of the South African Defence and Aid Fund for conducting such trials.Footnote ¹⁴ However, the LASA scheme was largely ineffective until the new democratic government widely extended its budget. In 1975 and 1976, only 810 applications were approved for legal aid in criminal cases.Footnote ¹⁵ Thus for the most part, black South Africans relied on CAOs and those limited elements of progressive white legal society that offered legal representation to blacks. During the late 1970s, the latter opportunities were consolidated into a few human rights legal organizations – such as the Centre for Applied Legal Studies (CALS) (1978) at the University of the Witwatersrand, the Legal Resources Centre (LRC) (1979), and Lawyers for Human Rights (LHR) (1979) – which took on mainly civil and political rights cases to advance social justice in South Africa.

During the late 1970s (and throughout the 1980s and early 1990s), CAOs worked collaboratively with organizations such as the CALS, the LRC, and the LHR in their attempt to advance what few rights they could on behalf of black people.Footnote ¹⁶ Collectively, they attempted to rally covertly with other civil society organizations at a time when such community activities were viewed with hostility by the state, and in response, CAO staff were frequently subjected to harassment and generally operated in a toxic environment.Footnote ¹⁷

One of the most important organizations that networked with and supported the work of CAOs in the apartheid era was the Black Sash, which was founded just seven years after the formal advent of apartheid and, as elaborated on in Section III, is still playing an important role as a community-based paralegal, state monitoring, and advocacy organization today. The Black Sash was established in 1955 by six white women as a membership-based (and membership-funded), volunteer, antiapartheid activist organization. The name refers to the black sash that the activists wore across their chests during protests. Initially, the group’s advocacy work centered on advancing a nonracial, morality-based vision within white society that questioned the validity of several pieces of apartheid legislation by holding mass meetings and vigils and launching petitions. From 1956 to the early 1960s, the Black Sash approach shifted to public education twinned with protest action. At the same time, the Black Sash set up CAOs in urban areas to assist black people who contravened the apartheid laws, particularly those that restricted freedom of movement. The CAOs provided support and free paralegal services, addressing concerns around housing, unemployment, pensions, influx control, and detention without trial. Between the 1960s and the 1980s, Black Sash CAOs flourished, and provided evidence with which the group informed its public protests and its monitoring of government policy, legislation, and action, as well as court activities. Through the CAO network, the Black Sash also monitored and recorded protests, rallies, arrests, detentions, and deaths.

2. Intensified Antiapartheid Efforts in the 1980s

During the 1980s, as political opposition mounted and insurrectionary fervor escalated in the wake of successive declarations by the government of states of emergency (1985–89), CAOs sprang up across the country in the homes of community leaders. These CAOs tackled immediate manifestations of apartheid rule such as forced evictions. For example, in 1986, the Logra CAO in the Western Cape was established to assist residents who had been forcibly removed from urban areas in Cape Town to the Cape Flats, to monitor unrest in the area, and to support the families of political detainees and those on trial. The Bhongolethu CAO in Oudtshoorn was also set up that year to assist community members with claims against the minister of law and order regarding farm evictions, as there was no legislation to protect workers. At the same time, the George Civic Association organized residents in opposition to forced removals, and CAOs such as the Grahamstown Rural Committee investigated and publicized the conditions of resettled communities through a newsletter and sympathetic media contacts. Over and above dealing with crisis interventions, CAOs focused more broadly on the end goal of ending the apartheid system. Notwithstanding the dangers of being allied to antiapartheid forces, CAOs networked with political organizations such as the South African National Civic Organisation (SANCO) and the United Democratic Front (UDF).Footnote ¹⁸

The range of problems black people faced as a result of apartheid conditions exposed community-based paralegals to a diverse set of problems and allowed them to acquire a wide skill set, including the ability to provide therapy, trauma counseling, and resource procurement. For example, in 1988, the Woodstock CAO in Cape Town initiated an anti–Group Areas organization in the area (the 1950 Group Areas Act stipulated separate race areas in towns and cities), and the office provided counseling to residents under threat of removal. There were further distinct problems in rural areas; a great deal of suffering stemmed from the breakdown of family structures, which was in turn caused by the migrant labor system, as women and children were left in rural areas while men went to the cities for work.Footnote ¹⁹ Organizations such as the Community Law and Rural Development Centre (CLRDC) were established at this time to help rural populations access the scant resources available to them from the Bantu or homeland administrations. In 1989, when the CLRDC was founded, it began providing access to information and social justice services to about 1 million people living in Natal and the Eastern Cape.Footnote ²⁰

The CAO movement gained an important avenue for funding through the establishment of the Social Change Assistance Trust (SCAT) in 1984. Drawing funds from the Norwegian government channeled through Norwegian Church Aid, SCAT initially provided funding to the Citizens Advice Forum, then extended its operations in the late 1980s to fund individual CAOs. By 1986, SCAT funded twenty-six CAOs and rural development organizations in the Cape and Natal. By 1990 – and despite some diluted reforms instituted by the apartheid regime to try to quell the rising tide of resistance – the combined weight of community mobilization and international economic disinvestment had forced the government into a stalemate, as a result of which it initiated a transitional period of negotiations toward democratic change. (Information about these and other organizations mentioned can be found in Section III.)

1. Deteriorating Socioeconomic Conditions

Gender-based violence is currently widespread in South Africa,Footnote ²⁹ and socioeconomic inequality is increasing. Approximately 50 percent of South Africa’s population of 49.9 million live below the poverty line. Unemployment is estimated at 25 percent of the economically active population;Footnote ³⁰ 51 percent of South Africans aged between fifteen and twenty-four are unemployed,Footnote ³¹ and this is highest among black women (63 percent). The fact that black youth have not been properly incorporated into the productive economy is clear from the fact that 30 percent of the population currently receives social grants. While expansion of social security provides a vital safety net for those in dire need, this extent of grant dependence is financially unsustainable; at the local level, for instance, in towns such as Lady Frere in Eastern Cape, the entire population of 5,000 people and eighty-five surrounding villages depends on social grants.Footnote ³² The creeping sense of disillusionment with the liberation government has now also, after years of nondelivery in public service, firmly taken root. The ANC’s failure to deliver on socioeconomic rights in the terms of the constitution has dashed hopes of ameliorating long-standing problems of inadequate housing, electricity, and water and sanitation services, as well as education, health care, and social security, an accountable police force, and decent work opportunities.

Moreover, notwithstanding the formal legal and policy frameworks, there has been a gradual erosion of human rights principles over the past decade, in the form of HIV/AIDS denialism, a preoccupation with cost recovery for basic services, and a general lethargy in state institutions regarding the fulfillment of human rights obligations. At the sharper end of this retreat from the promise of the early “rainbow” days were the government’s proposals during 2010 to pass protection of information legislation that would have undermined public access to information and established a tribunal to regulate the media.

2. New NGOs Confront the New Problems

This somewhat conflicting context of formal spaces and conducive frameworks on the one hand, and entrenched structural barriers alongside increasing failures of governance and service delivery on the other, has led to a burgeoning of civil society organizations. These include nongovernmental organizations (NGOs), trade unions, and social movements such as the Anti-Privatisation Forum, the Informal Settlements Network, the Landless People’s Movement, and the Abahlali base Mjondolo (shack dwellers’ movement). There has also been an increased demand for legal advice, training, and representation within the new democratic dispensation. After 1994, although all South Africans technically had all sorts of rights (civil and political, as well as socioeconomic), it remained difficult to actually access them, providing a new role for paralegals to attempt to translate the new Bill of Rights into reality. Indeed, as people gradually become aware of their rights (in no small part due to the educational work of paralegals), there has been an ever-growing need for paralegal assistance in claiming them.

While access to justice has significantly improved with the augmentation of LASA, which has expanded as one of the institutional pillars of the new constitutional order, the access has not expanded to meet the vast legal and quasi-legal needs of the majority poor, particularly in rural areas and generally with regard to civil claims.Footnote ³³ It is in this context that CAOs have redefined their role as pioneers of development, as translators of the Bill of Rights, and most particularly as conduits of justice for people in far-flung rural areas. At the same time, probably in response to operating in the more nuanced post-1994 context when the (ANC-dominated) government was sometimes part of the problem for people in poor communities, many CAOs also began to distance themselves from the ANC and to become more politically neutral – or at least to portray themselves as such.

In addition, there have been structural changes in the paralegal sector during this period. For example, to optimize reach and efficacy, from 1994 to 1996 the National Community Based Paralegal Association (NCBPA) was established as a national CAO network, thereby increasing knowledge sharing and communication among paralegals on the ground.Footnote ³⁴ The Black Sash also evolved during this time, in form and function. Between 1994 and 1999, the Black Sash helped to draft legislation and contributed to parliamentary standing committees looking at legal reform. It eventually became a professional NGO rather than a membership organization, with full-time paid staff and a board of trustees.Footnote ³⁵ As discussed in Section III.B, the Black Sash has developed its own human rights programs, implemented them through rights education and advocacy, and monitored the impact of legislation through its regional centers.

Organizations such as CCJ also adopted a new operating structure after the end of apartheid, shifting their focus from the treatment of political prisoners to becoming protectors and defenders of rights, particularly with respect to violence against women and children.Footnote ³⁶ CCJ realized that a new approach was required, and that the South African Police Service was struggling to grapple with such crimes.Footnote ³⁷ CCJ thus began a pilot scheme to train civilians as paralegals, with specific focus on how to take statements from and counsel someone who has suffered a trauma in a confidential, private space, teaching the victim about his or her rights at each stage, and arranging follow-up support. At the end of the first month of this scheme, the first paralegal trained had been involved in thirty-five cases, and by the end of six months, this figure was 100. This collaborative model led to an influx of reporting, and established an iterative program between CCJ, police, magistrates’ courts, and traditional and community leaders.Footnote ³⁸ SCAT also shifted to focus solely on rural areas and to phase out its funding of urban-based service organizations, on the basis that rural people’s exclusion from wealth and power would likely be perpetuated unless actively challenged, and that the positive changes following the democratic election would come more slowly to rural than urban areas.Footnote ³⁹

1. Mandate to Report on Service Delivery

More generally in terms of this new mandate, the Black Sash has a memorandum of understanding with the Department of Home Affairs, DSD, and the South African Social Security Agency (SASSA) to carry out monitoring and report back at a local level on service delivery.Footnote ⁴⁹ The project, known as the Community Monitoring and Advocacy Programme (CMAP), commenced in November 2009 and is run jointly by the Black Sash and the Social Change Assistance Trust (SCAT), which together coordinate volunteers nominated by 270 CAOs and community-based organizations to record their observations at service delivery points across all nine provinces over an eighteen-month period.Footnote ⁵⁰ When the reports come in, these observations are used to access and report on government service delivery in specified state departments as experienced by beneficiaries. Finally, the Black Sash is starting to look at labor advocacy, which currently makes up around 25 percent of its cases. In this regard, it is investigating how to work with unions, as the majority of clients’ labor matters relate to union–member disputes.

Across offices and projects, the Black Sash paralegals work in a particular way. They capture trends and feedback from their casework that are entered in a database held at each regional office. These statistics show the prevalence and location of certain issues, as well as the turnover of cases handled. The Black Sash’s advocacy strategy is informed by analyzing these case logs, using hard evidence as proof of what the paralegals witnessed on a daily basis rather than relying on rough notebooks. The database is used to identify emerging trends and developments in regard to which the group then lobbies for policy implementation or reform.

Through its case management system, the Black Sash is able to analyze trends and mount strategic interventions in a way that most CAOs (discussed later in this chapter) are not. For example, the Black Sash is currently advocating that the qualifying age for a child support grant be raised to eighteen years rather than the current fifteen years. An analysis of regional trends can also give rise to a class action, although the Black Sash makes clear that litigation is used only as an absolute last resort, after all avenues of cooperative engagement are exhausted and no solutions are forthcoming.Footnote ⁵¹ The organization has, however, had important successes gathering evidence from regional case data with which to mount a case, most frequently partnering with the LRC in line with the two organizations’ long history of collaboration.

In 2000, the regional director of the Grahamstown Regional Office noticed that an overwhelming number of clients were having problems getting their social grants approved on time, and that when finally approved, they did not receive any back pay from the date of application. Case logs from the Black Sash database showed clients waiting from nine months to three years for approval of their grants. Given that Regulation 11 of the Social Assistance Act (1992) limited back payments to ninety days from date of approval, the long wait was having a serious impact on the lives of poor people while the Eastern Cape government saved money by allowing such long delays. The Grahamstown Regional Office monitored the issue for a year before taking it to the Black Sash National Advocacy manager for assistance. When other Black Sash regional offices showed similar patterns, the Black Sash referred the evidence to the LRC, which found grounds for a legal case against the National DSD and Eastern Cape DSD on the ground that Regulation 11, in relation to back pay, was unconstitutional.Footnote ⁵²

A settlement was eventually reached one day before trial, the Regulation was set aside, and an order was issued giving people the right to back pay from the date of application. An amount of R 2.1 million (roughly US$260,000) was made available for back pay to all who had been affected by the offending regulation. The Black Sash then went back to the grassroots level where the problem had been detected to make sure that the benefit of this order was felt by the thousands of people who had been affected. Paralegals communicated with DSD, requested a list of all entitled applicants, and lobbied for DSD to create pamphlets informing people of the court order and how to access their back pay. Individual CAOs then took on the task of finding people entitled to back pay and taking them to pay points with the necessary documents. More recently, in January 2011, the Black Sash won a case against the Eastern Cape DSD, compelling it to hear disability grant appeals and clear the backlog in which around 65,000 South Africans are currently trapped. In both cases, from start to finish, the Black Sash paralegals were the impetus and enforcement of the progressive realization of the right to social security, and helped secure administrative justice for poor and vulnerable people without the means to access other legal help to uphold their rights.

2. Providing Education about Rights

More generally, paralegals working within the Black Sash see themselves as legal facilitators, informing people of the right channels to take and unblocking any obstacles they encounter. Rights education is the Black Sash’s priority, and information captured from casework helps to develop rights education programs through targeted media channels. In the Johannesburg regional office, the paralegals worked with three local community radio stations as well as one national radio station in 2010, talking on air about rights associated with their focus areas.Footnote ⁵³ In all their offices, Black Sash paralegals do a substantial amount of community and peer training, from queue education for walk-in clients waiting in the office reception for consultation, to running workshops on social security in conjunction with the National Welfare Forum.Footnote ⁵⁴ They also train people to open new CAOs;Footnote ⁵⁵ indeed, it was paralegals at the Black Sash who trained the LASA paralegals working in the new LASA call center. Finally, through its paralegal guides and manuals,Footnote ⁵⁶ produced annually to update CAO paralegals on new legislation and policies, the Black Sash also extends its impact beyond the urban centers that are its primary focus, keeping in touch with the CAOs with which they were so strongly connected as an activist organization under apartheid.

1. National Alliance for the Development of Community Advice Offices (NADCAO)

The National Alliance for the Development of Community Advice Offices (NADCAO) is an affiliation agency that seeks to facilitate the operations of the 230 CAOs that have joined the alliance.Footnote ⁵⁸ It was set up in 2007 to fill the lacunae left by the closure of the NCBPA four years earlier.Footnote ⁵⁹ During this time the sector lost much of its coordination and knowledge-sharing capacity, and without communication at the national level, the larger players in the sector (which later became NADCAO’s founders) lost much of their footprint in terms of trend analysis across the country, while individual CAOs became increasingly isolated and unsupported.Footnote ⁶⁰ NADCAO was founded by a steering committee of seven founding members, including influential bodies in the paralegal sector such as the Black Sash Trust (in whose Cape Town offices NADCAO is based), the CLRDC, the Association of University Legal Advice Institutions (AULAI) Trust, and SCAT. It is neither a membership,Footnote ⁶¹ nor a funding organization (centralized funding is channeled to the sector through other umbrella organizations, namely SCAT, CLRDC, CCJ, and AULAI as described later in this chapter),Footnote ⁶² but sees its role as providing strategic support and an advocacy platform to the community-based paralegal sector, helping it to consolidate a national footprint, position itself within national legal and institutional frameworks, and increase the capacity and sustainability of individual affiliated CAOs.

Funded by the Atlantic Philanthropies, the Charles Stewart Mott Foundation, and the Joseph Rowntree Charitable Trust, NADCAO plays a strong advocacy role and envisions an organized, institutionalized, and regulated sector, while recognizing the supporting role played by civil society organizations, with the goal that every community in South Africa will have walking-distance access to a functioning, well-resourced CAO. NADCAO’s main functions are to increase communication and knowledge sharing among CAOs; to broker partnerships between CAOs and community stakeholders in government, civil society, and the private sector to garner financial support; to provide paralegal training; and more generally, to strengthen the efficacy and sustainability of CAOs.

Out of the 230 CAOs belonging to the alliance, former NADCAO national coordinator Greg Erasmus estimates that there are currently 150 “good” offices, in terms of governance, accountability, and quality of service.Footnote ⁶³ For Erasmus, the “good” CAOs are characterized by effective internal governance and accountability within the communities they serve. In the “not so good” CAOs, there are problems related to handling budgets,Footnote ⁶⁴ practicing good governance,Footnote ⁶⁵ and being unresponsive to local communities or simply not performing paralegal duties for community members. Such problems mainly stem from a lack of regulation and management and, in response, NADCAO is encouraging the forums to establish minimum standards for CAO governing bodies (management committees), and mandatory training in human resources and finance that is tailored to the CAO management committees.Footnote ⁶⁶ At the time of this writing, however, this had not yet occurred.

NADCAO has been instrumental in advocating a role and institutional framework for paralegals in the Legal Practice Bill (discussed under Section V) and otherwise acting as a mouthpiece for the sector’s attempts to gain further formal recognition and public funding. Generally speaking, the paralegal sector appears to have welcomed NADCAO as a countrywide organizational tool and national voice after a long period of fragmentation brought about when the NCBPA shut down. Under NADCAO, CAOs are also organized according to smaller specialist affiliation networks or clusters run by organizations on the NADCAO steering committee board.Footnote ⁶⁷ Thus, at the regional level, CAOs are affiliated with SCAT (predominantly a centralized funding source) in the Northern, Western, and Eastern Capes, and the CLRDC and CCJ (providing training and funding) in KwaZulu-Natal (KZN). CAOs are also clustered by AULAI (providing mainly case referral support, as well as some training and a little funding) around university legal clinics. While NADCAO is formally independent of these support organizations, their directors are on the NADCAO steering committee board. The following sections examine the ethos and operations of these various organizations.

2. Social Changes Assistance Trust (SCAT)

With twenty-seven years of involvement in the CAO sector, today, SCAT’s vision is to make CAOs institutional centers of democracy within communities that empower the rural poor and strengthen civil society in remote areas of the Eastern, Western, and Northern Capes. It does so primarily through channeling start-up funding to CAOs,Footnote ⁶⁸ raised primarily from international donors.Footnote ⁶⁹ SCAT currently funds forty-five CAOs (all NADCAO affiliates),Footnote ⁷⁰ managed by elected community members and mentored by a SCAT fieldworker who has the indigenous knowledge to pick up on community dynamics and issues.

SCAT shares NADCAO’s belief that community control is an essential component of civil society and accountable governance, a belief that directly shapes SCAT’s funding policy requirement that the CAO is community based, rural, and collectively owned. More particularly, SCAT requires a CAO to have management committee annual general meetings (AGMs), a committee constitution, and regular committee meetings with the community that include a report from the CAO. Financially, the CAO needs to produce an audited financial statement within two years and then annually, as well as monthly or quarterly reports to SCAT. The CAO must be nonpartisan both politically and religiously, and membership and access must be open to all (a strategy aimed particularly at preventing xenophobia). Within two years of receiving SCAT funds, a CAO also needs to show a meaningful form of participation by women, either at the governance level within the CAO management committee or as paralegals or coordinators, or it must be able to show 50 percent female representation at all CAO workshops.Footnote ⁷¹ This is part of SCAT’s belief that the key to social justice lies in actively involving women and other marginalized groups in all levels of decision-making, and that gender empowerment in rural communities can be achieved by giving women a space in which they can claim expertise, power, and ownership.

As SCAT is primarily a start-up funding conduit, one of its main functions is to assist affiliated CAOs in becoming self-financing. This model obviously assumes that CAOs can attract funding elsewhere, though this is far from evident,Footnote ⁷² and there is some anxiety among CAOs related to future sustainability.Footnote ⁷³ Nevertheless, SCAT remains committed to preparing CAOs for self-sufficiency and to this end, facilitates a platform for alternative funding models. The most influential, and arguably most successful part of SCAT’s exit strategy is the Fund-Raising Incentive Scheme (FRIS). FRIS was launched by SCAT in 1996 as a grant-making mechanism that rewards CAOs for raising money in their communities, as through every R 1 raised through a local event, SCAT rewards the CAO with R 5. Around 80 percent of SCAT-affiliated CAOs participate in this scheme, through which they can claim up to R 25,000 per annum (US$3,000), or up to R 100,000 (US$12,000) if a CAO is not using its core grant of R $4,000 (just under US$500) per month. The intention of the scheme is to foster a CAO’s independence, reducing its reliance on grant funding and enabling it to access resources from local government and other community stakeholders.

According to the observations of SCAT’s fieldworkers,Footnote ⁷⁴ FRIS raises the status of the CAO within the community by promoting community networking and participation. The average FRIS event involves between 160 and 200 community participants and raises about R 2,000 (US$250), although in 2009, the Prince Albert CAO fish barbeque raised R 50,000 (US$6,150), and the Thusa CAO taxi wash raised R 25,000 (US$3,000). The money is much needed and used to keep the CAO running on a daily basis, providing transport to service surrounding villages, starting community development projects, purchasing stationary stock, paying electricity bills, or increasing staff salaries. SCAT’s incentive scheme to encourage a CAO to raise funds through its own efforts promotes a sense of responsibility, develops the CAO’s financial skills, and promotes planning, budgeting, and transparency.

Since 2001, SCAT has also run HIV/AIDS awareness programs on an incentive basis, providing funding of up to R 50,000 for a good HIV/AIDS program by a CAO. Thus far SCAT has funded thirty-eight CAOs through this system, although specific funding for HIV/AIDS programs is currently being substituted in favor of funding related to health-systems strengthening. CAOs are also encouraged to apply to tap SCAT’s Development Fund for training staff and volunteers,Footnote ⁷⁵ again, with an emphasis on self-starting and self-policing, CAOs have to meet certain criteria for a budgetary allocation to be claimed as needed.

Notwithstanding concerns over longer-term financial sustainability, SCAT’s support to CAOs appears to work well at the developmental stage, putting in systems to build strong institutions that are attractive to donors. SCAT fieldworkers, who usually have a background in social sciences, complete a developmental practice course on how to work progressively with communities, and receive training on specific issues such as HIV/AIDS awareness and testing and local economic development initiatives. The fieldworkers assess how the management committees and coordinators of CAOs are building the capacity of the institution; they also provide on-site support to CAOs and play a brokerage role with the municipality, frequently auditing the organizations’ management and technical skills and giving advice on project management and budgeting.

3. Community Law and Rural Development Centre (CLRDC) and Centre for Criminal Justice (CCJ)

The CLRDC and CCJ are based in KZN and work closely together on research, training, monitoring, and funding proposals to advocate for the recognition and regulation of paralegals, particularly those who service rural areas. In total, the two organizations cover forty-five advice offices (CCJ has fifteen and CLRDC has thirty affiliated CAOs) with fifty-four paralegals, accounting for more than 80 percent of the CAOs in KZN. The CLRDC and CCJ mainly provide funding, training, and capacity-building support to their affiliated CAOs, which also have access to two in-house attorneys based at CCJ for back-up legal advice. Although the substance of the work of their CAO branches is similar, as parent organizations, CLRDC focuses more on management support and performance monitoring, while CCJ is more responsible for training, capacity building, documentation, and research.Footnote ⁷⁶ They also operate in different contexts. For the past twenty years, the CLRDC has been operating in communities governed by customary law and tribal authorities, and more than half of CLRDC’s thirty branch CAOs are located within traditional court office buildings rather than municipal structures. Meanwhile, CCJ supports fifteen CAOs,Footnote ⁷⁷ operating in more “modern” settings, such as police stations or magistrates’ courts.

Together, CCJ and CLRDC are working on a five-year strategic plan for each of their branch CAOs to be independent NADCAO affiliates, without requiring funding by the CLRDC or CCJ, and instead creating localized programs and raising their own resources.Footnote ⁷⁸ Similar to SCAT’s exit strategy, CLRDC and CCJ are currently identifying and building the prerequisite capacities of CAO management committees and paralegal staff to take full responsibility for running their organizations.Footnote ⁷⁹ Both CLRDC and CCJ are funded by the Atlantic Philanthropies, with CLRDC also receiving funding from the Joseph Rowntree Charitable Trust and CCJ from the Ford Foundation. Although the organizations would like to pay paralegals a salary of at least R 5,000 per month, in 2010, salaries had to be cut to around R 2,500 per person per month due to a shortage of funds.

CLRDC and CCJ paralegals operate mainly in rural and peri-urban areas in KZN,Footnote ⁸⁰ and handle client matters similar to the SCAT-affiliated CAOs. The paralegals’ jurisdiction is wide given the remote locations in which they work; one CCJ CAO, for instance, services a population of 1.2 million. On average, CCJ CAOs handle eighty cases per month; however, it is notable that 50 percent of cases handled by CCJ CAOs are related to domestic and sexual violence.Footnote ⁸¹ CCJ-affiliated CAOs receive around 9,000 such complaints per year, a high figure that Winnie Kubayi, director of CCJ since 1997, believes is inextricably linked to living in rural areas, where rights education is weakest and the patriarchal Zulu community makes the solutions typical in cities more difficult to attain.Footnote ⁸² It is also worth noting that CCJ only employs women as paralegals as part of its policy of gender empowerment in rural areas. CCJ identifies cases by working alongside the police and making home visits within communities, which helps to bring to light cases of a sensitive nature and encourages victims to report crimes. Physical proximity to the police station is the best place for the CAO to ensure that clients’ issues are handled appropriately, affording them safety, confidentiality, and access to medical treatment. It also places the CAO strategically in the best position to play a watchdog role over the police, aiming to decrease abuse and increase the accountability of the criminal justice system.

CLRDC and CCJ paralegals are also active community educators, mandated by their parent organizations to run two workshops and make four school visits per month. They make weekly presentations at medical clinics, church groups, or community development meetings, and hold focus group workshops every quarter, where a group of former clients will gather to discuss common concerns.

4. The Access to Justice Cluster (AJC) Program of the Association of University Legal Aid Institutions (AULAI) Trust

The remaining organizational structure for CAOs is the Access to Justice Cluster (AJC) program run by the AULAI Trust. The AULAI Trust, which developed out of the AULAI that was established in 1982 as a kind of trade union for all university law clinics, was founded in 1998 with a once-off grant from the Ford Foundation. The Trust acts as a funding agency to South Africa’s eighteen university law clinics and their associated projects, one of which is the AJC program, which operates through eight AJC clusters attached to eight of the university law clinics.Footnote ⁸³

These eight AJC clusters consist of the cooperative body of university law clinics, LASA justice centers,Footnote ⁸⁴ NGOs, CAOs, community-based and faith-based organizational networks, and private practitioners working together to provide access to justice and services to poor and marginalized people in rural and remote areas, informal settlements, and squatter camps.Footnote ⁸⁵ South Africa’s eight clusters provide training and back-up legal services to approximately 100 CAOs across the country, enabling qualified lawyers to support paralegals without prescribing or restricting their broad scope of work.Footnote ⁸⁶ For example, within the Northwest AJC (NWAJC), an attorney from the university law clinic at Potchestroom visits eight CAOs in the province on a monthly basis. This attorney visits each CAO in the cluster to pick up cases that are beyond the capacity of the paralegal to assist. At the time of this research, the NWAJC attorney had 500 live cluster case files on her desk, which did not account for the extent of legal advice provided ad hoc on the day of her monthly visit in consultation with walk-in clients. The CAOs within NWAJC stockpile cases in advance of the attorney visit, or call the university law clinic if advice is required more urgently.

A key benefit for CAOs within a cluster network is the level of training provided by the university law clinic. Again the training focus is institution building as well as legal literacy. The NWAJC on-site training manual for office administration hosted in 2010 includes information on following banking procedures, maintaining efficient filing systems, making funding proposals, and writing notices and agendas of meetings, as well as information on how to take statements, draft a letter of demand, make checklists of documents required for civil claims, and complete client interview intake forms. Formal legal training is also provided with differing areas of focus. For instance, the training given to paralegals in NWAJC in November 2010 focused on domestic violence and the law with regard to seeking a protection order, as well as consumer law and issues around breach of contract and malfunctioning goods. Less frequently, AJCs provide funding to CAOs within their clusters if they can prove that the office has a functioning management committee, is registered as an nonprofit organization, has a constitution, takes minutes from general meetings, possesses an operational bank account, and has been running for at least two years. For the past three years, the AULAI Trust has provided some funding on this basis to qualifying CAOs, with each CAO normally receiving R 2,000–3,000 (US$245–US$370) per month.

1. Relationships with the State

State institutions are some of the most important stakeholders within the community-based paralegal sector. The ultimate resolution of the many problems facing their clients often depends upon these institutions, and nurturing state relations is crucial if CAOs are to become stronger organizations and embed themselves into the fabric of society. The generalist nature of the work of community-based paralegals means that they foster relationships with a wide range of state bodies and government departments at the municipal, provincial, and national levels. Based on their common individual client matters, South African paralegals deal most frequently with DSD for social security concerns, the Department of Home Affairs for identity documentation issues, the Department of Health for issues relating to the rights of people with HIV/AIDS, the Department of Labour for employment concerns, and the police for family and gender-based matters.

For the most part, it seems there is substantial (nonmaterial) support for CAOs from the state, based on the state’s appreciation of the role paralegals play in smoothing the process of service delivery.Footnote ⁹¹ This good working relationship, as explained by a paralegal at the Mpopomene CAO, is because “[the municipality] could not serve the community properly but now, knowing that the advice office is there, they are working better on the people’s behalf and making more effort, for instance with the provision of free funeral services and food parcels.”Footnote ⁹² The state has acknowledged its support for community-based paralegals in very practical, valuable ways, for example, in the way that CCJ branch CAOs have been able to physically mainstream their advice offices within state criminal justice institutions. This affiliation with the police has made their watchdog role easier, given the paralegals’ greater influence in community affairs, and allowed them to share resources in terms of rental and utility payments and transport costs. Similarly, the municipality shows its approval of the work of the Zola CAO by paying the cost of rent, electricity, and water for its base at the Jabulani Youth Club, and for the Mpola CAO by providing an office free of charge within the town hall.

This somewhat strange symbiotic relationship, which helps CAOs resolve community problems such as the mistaken termination of social grants and so forth, in essence means that CAOs often do “the government’s job.” Interestingly, there does not seem to be much animosity on the part of state officials toward paralegals for effectively showing them up, and this is possibly related to the non-adversarial way CAO paralegals work, as elaborated on in Section VI. More research is required to examine the dynamic between state officials and CAOs more fully. Most importantly, the clients and communities clearly benefit significantly from these solid relationships with state institutions as reflected in cases 1, 3, 6, and 8, in which problems relating to the state’s nonperformance were resolved by CAOs through their good relationships with state bodies (specifically, DSD/SASSA and the police in these cases).

2. Relationships with Traditional Authorities

Traditional authorities operate within a dualist system of government in seven of South Africa’s nine provinces, most notably in the rural areas of KZN and the Northwest and Eastern Capes, and the constitution recognizes customary law that is upheld and acknowledged within common law courts.Footnote ⁹³ Paralegals in rural areas under chieftain leadership play an important role in reconciling the interpretation of common law with respect for cultural values and practices. Being part of the community, these paralegals are well placed to straddle South Africa’s dualist legal system, as they have the training to translate the Bill of Rights and so can supplement the role and function of the chiefs’ offices and tribal courts. For example, during our research, we were told about a chief asking the paralegal to conduct the proceedings in his court so as to ensure the parties in dispute were aware of their legal rights and options.Footnote ⁹⁴ Indeed, according to our observations, community-based paralegals in these areas have good working relationships with the chiefs’ offices, as highlighted in case 3. There are more formal manifestations of the close working relationship between CAOs and traditional authorities. For example, in KZN, fifteen CLRDC CAOs are located in traditional court office buildings, and it is also tribal headmen who usually approach the CLRDC to say that their community needs a CAO and to suggest candidate paralegals for training.

Msomi, a paralegal at the Mpola CAO in KZN, explained that it is important for her to maintain good connections with the traditional leaders in her community if she is to conduct effective mediation strategies, given that it is the norm for people to consult with the headmen when disputes arise as well as with the CAO.Footnote ⁹⁵ To this end, paralegals work hard to ensure cooperation between the CAO and the chief’s office. John Moerane, provincial coordinator of the Northwest Paralegal Advice Office Cluster, for example, drew support from the South African Human Rights Commission (SAHRC) and the Department of Judicial Affairs and Constitutional Development (DJCD) to come and talk to traditional leaders in the Northwest Cape about the Bill of Rights and its ramifications. As a result, a new CAO is being opened at Letlhakane within the chief’s office, following the CLRDC model, which Moerane hopes will set a precedent of common engagement between CAOs and tribal authorities in the province. CAOs also involve the traditional authorities in their ongoing community education programs. As Sophia Tumelo, paralegal at the Phokeng CAO, recounted, before approaching the community, she goes to the nearby chiefs’ offices at Bethani, Motlhabe, and Lema and asks to participate in their workshops. This approach often leads to profitable collaboration; for example, the Phokeng CAO is currently working with Chief Legwale at Siga Village on a poverty alleviation campaign.Footnote ⁹⁶

1. Unclear Regulatory Environment

Although not apparent from our case-tracking exercise per se, a more overarching problem in the sector is the unclear regulatory environment within which CAOs operate. With no formal requirements and no mandatory regulatory oversight, CAOs operate largely unregulated apart from their relationship, where they have one, with the umbrella structures discussed earlier. There are undoubted advantages to this system, such as allowing a large number of unique, locally specific, and dynamic CAOs to spring up (and flourish or sink). However, the downside is that there is no comprehensive quality assurance or control, meaning that communities are vulnerable to fly-by-night CAOs (although we saw no evidence of this, probably because we primarily observed CAOs affiliated to NADCAO structures). It also undoubtedly impacts negatively on the availability of funding, which is discussed later in this chapter.

The issue of formal regulation has been extensively debated within the sector. While there are many opponents, including some CAOs and umbrella structures that fear regulation might lead to an over-restrictive definition of paralegal work, other CAOs support such recognition because of its funding implications. NADCAO, for example, lobbied for many years for the participation of CAOs in the process surrounding the Legal Practice Bill (LPB). This bill, which was stalled for many years seemingly due to hostility from a legal profession that is skeptical about the role and standing of CAOs, was resuscitated at the end of 2012. Among the main objectives of the LPB are more affordable legal services and a restructuring of the legal profession. Notwithstanding NADCAO’s calls for CAOs to be incorporated into the legal profession and regulated by legislation,Footnote ⁹⁷ when it was ultimately passed in 2014 the Legal Practice Act 28 of 2014 did not encompass CAOs.

Another regulatory option would be to formally draw CAOs into the LASA structures. This model could enhance sustainability and professionalism within the CAO sector, as is the case, for example, with the Ceres CAO in the Western Cape, which maintains a very close relationship with the Stellenbosch LASA Justice Centre, seeking and receiving regular advice on client matters.

Some paralegals expressed skepticism about this model, complaining about a lack of financial cooperation and the frequent unreliability of the LASA centers. Yet, from our interviews and observations, it seems there is scope for developing the model and, in particular, for improved knowledge sharing in the sector, which could be enhanced through the integration of NADCAO and LASA structures. This not only could have the potential to support the greater professionalism of CAOs but might be the most cost-effective way for LASA to increase its national footprint and its number of civil cases. For University of KwaZulu professor of law David McQuoid-Mason, who supports this model of cooperation between CAOs and LASA, such a relationship should be formalized for the sake of the sustainability of the paralegal sector. For him, “ideally, community-based paralegal services should be funded by the state and integrated into the national Legal Aid scheme via contractual agreements that stipulate that the CAOs provide preliminary advice at the grassroots level.”Footnote ⁹⁸

Agreeing with McQuoid-Mason, CLRDC Director Langa Mtshali advocates apportioning some of LASA’s annual budget to CAOs, pointing out to the Socio-Economic Rights Institute of South Africa (SERI) that it would cost only 1 percent of the DJCD annual budget (R 1.4 billion for the year 2009–10, of which LASA received R 900 million) to run 230 CAOs for a year.Footnote ⁹⁹ While there are clear concerns regarding the absorption of CAOs by the state administration, integration with LASA, which remains structurally autonomous from government, would provide CAOs with an assured referral mechanism for representation of potential litigants. It would have the additional benefit for LASA of lifting the burden of rights education and thus reducing the number of walk-in clients seeking very basic advice. However, notwithstanding such ideas about how to regularize the sector, with no clear regulatory nirvana in sight, CAOs continue to triumph or flounder in an unregulated environment.

2. Insecure and Insufficient Funding

A further hindering factor across the sector – again, more apparent from interviews than from the case-tracking exercise – is that there is currently a funding crisis among CAOs in South Africa.Footnote ¹⁰⁰ The vast majority do not receive financing from the government for the day-to-day running of their offices and since their inception have relied heavily on international donors. However, the donor environment has changed, as donors are increasingly placing their money elsewhere on the continent on the basis that South Africa is now a middle-income country. While arguably understandable, this trend ignores the fundamental structural problem that remains (and indeed is intensifying) in South Africa, namely the enormous and growing divide between rich and poor. It also overlooks the fact that this divide is racially defined, and is as damaging as legislated apartheid. As SCAT executive director Joanne Harding explains, “the overt ‘political’ injustice of apartheid attracted foreign interest but in global contexts, economic apartheid under a democratic state is neither attractive nor compelling.”Footnote ¹⁰¹

Nevertheless, the exodus of international donors has affected CAOs predominantly as it has dried up funds for their parent and affiliate organizations such as AULAI, SCAT, CLRDC, and CCJ. These organizations also find South African donors reluctant to engage with them, as they prefer to focus on charity rather than social justice. Funding is therefore more erratic, short term, and insecure. SCAT, for instance, currently has twenty funders, but these bring in less income than ten years ago when there were just six donors. Attaining multiyear funding is a huge challenge, requiring new grant applications every year for grants that tend to support specific projects rather than the day-to-day running of CAOs.

Indeed, many CAOs have had to close due to lack of funds (for example, SCAT has cut support for forty-three CAOs and CLRDC for thirty-seven CAOs), while others operate with minimal resources. CAOs currently generate an income from a variety of sources – local grants, income from community-based projects, donations from community members, government subsidies – some more successfully than others. However, given that CAOs operate in poor communities, they struggle to sustain their operations solely from donations and local income generation. This has led to fragmentation within the sector and a breakdown in information sharing. Moreover, scant resources also mean that CAOs are restricted in their work; the Ceres CAO receives an income of R 6,000 per month (US$750 – R 2,000 from SCAT and R 4,000 from the Office of Consumer Protection within the Department of Economic Affairs. For this latter sum, the office has to see eight clients and hold one workshop per month, and run campaigns to raise awareness of consumer affairs.Footnote ¹⁰²

Lack of funding also means a cut in paralegal salaries. Community-based paralegals are undoubtedly underpaid for their work, as evidenced by the broader extent of their mandate and significantly lower remuneration in comparison to paralegals employed by LASA and litigating NGOs. In addition, salary cuts increase the turnover in staff, leading to a brain drain in the CAO sector and the loss of capacity as paralegals look for employment elsewhere to mitigate their own hardship. Although the pattern of paralegals using CAO work to springboard political careers has lessened, absorption into state structures is still a threat, given paralegals’ suitable skill set and the draw of better remuneration. Such loss of personnel will create a deficit in the fabric of democracy, with widening gaps in coverage by paralegals and their capacity to build democracy at the local level. While the South African paralegal sector is characterized by passionate and committed community developers,Footnote ¹⁰³ Vivek Maru’s comment about the need for remuneration for the sector globally – that “most paralegal programs which are serious about providing a sophisticated service pay their staff” – remains true in South Africa.Footnote ¹⁰⁴

In this context, one of NADCAO’s main current objectives is to attempt to establish a funding mechanism to support the basic operating costs of at least one CAO per municipality (with additional or satellite CAOs if required in the most remote villages). As NADCAO explains, “in order for people in poor and marginalized communities in South Africa to have access to reliable and effective CAOs, the sector requires a sustained and comprehensive national funding mechanism that would support local efforts by the community advice offices themselves to sustain their operations.”Footnote ¹⁰⁵ Greg Erasmus points to NADCAO’s overarching vision for the sustainability of CAOs as the ultimate manifestation of community self-help,Footnote ¹⁰⁶ whereby a CAO is hooked in to a mutually supportive framework, including the municipality and local businesses, leading to engagement with provincial stakeholders such as the Law Society, regional government departments, and major provincial industry bodies (for instance, the Consumer Protection Office, Life Assurance Office, or Banking Counsel).Footnote ¹⁰⁷ The CAO could then enter into service agreements with the relevant organization to secure funds for specific campaigns that would advance the goals of the funder.Footnote ¹⁰⁸

In the meantime, though, CAOs face a constant struggle to access secure and sufficient funding, which undoubtedly impairs the reach and quality of their interventions. This is so not least because it means that most CAO offices are one-person ventures, which places substantial strain on the paralegal to cover all the program work, as well as to manage and administer the office. In many cases, the paralegal has to also fund at least part of the work himself/herself, as was evident in case 2, where the paralegal had to use his own cell phone credit to make the required telephone calls to resolve a matter. These circumstances contribute to a firefighting approach and in all likelihood underlie the generalized lack of proactive or systemic problem solving we observed during case-tracking, which we expand on in the next section.

3. Reliance on Remote Urban-Based Lawyers (including LASA)

While formalistic legal solutions, and in particular the adversarial approach of lawyers, are not always appropriate, our research indicates that a CAO’s ability to fully resolve all disputes often relies on the availability of an effective lawyer referral network for cases requiring more adversarial efforts, such as in cases 7, 9, and 11. Indeed, for the most part, community-based paralegals lack the legal qualifications necessary to represent clients in court should their matters require litigation. Their legal skills are usually acquired informally on the job and, while often precisely tailored for their clients’ needs (see later in this chapter), there are obvious limitations, especially with respect to formal litigation in the court system. Thus, in order to go beyond civil matters and provide access to justice for clients facing criminal charges, paralegals are reliant on effective referral mechanisms to qualified attorneys. The CAOs within AJC networks are well served in this regard, given the formal system by which visits to the rural offices are conducted and case files taken on. Paralegals at the Black Sash and in CAOs operating in urban areas also have more options in terms of recourse to litigating NGOs and pro bono lawyers. Generally speaking, where these relationships are well established, they are often successful; referrals from community-based paralegals inform the public interest litigation focus of NGOs,Footnote ¹⁰⁹ while law firms that mandate their fee earners to commit to a certain amount of pro bono work have a ready caseload.Footnote ¹¹⁰

However, these relationships are more precarious when paralegals serve remote, rural communities where sympathetic private lawyers are few and far between and the CAOs lack support structures such as that provided to the AJCs. Frustration occurs when paralegals do not find adequate support from LASA justice centers, leaving their clients no option but to scrape together funds, if they can, to seek out legal advice in the nearest town,Footnote ¹¹¹ despite their growing mistrust of local practitioners who, in the words of one CAO, provide a slapdash service for extortionate fees.Footnote ¹¹² The lack of an effective referral system remains an obvious disadvantage for those with matters requiring administrative action,Footnote ¹¹³ and represents the South African justice system’s failure to fulfill Sections 33 and 34 of the constitution enshrining every person’s rights to just administrative action and access to the courts system.

Nevertheless, as illustrated in cases 7, 9, and 11, even where CAOs are effectively linked to lawyers, a disconnect can occur when a matter leaves the immediate setting, effectively distancing the client to the point where he or she loses touch with the case. While this does point to a critique of some lawyers’ inadequate efforts to remain in regular communication with clients, it also indicates a greater problem among CAOs: that of ineffective case management and the tendency to deal with anything other than the first, immediate stage of a matter, which is expanded on in Section VI.B.

1. Support of Umbrella Clusters

One of the defining features of the South African CAO network is the structure of umbrella clusters. It is clear that organizations such as NADCAO, CCJ, and CLRDC provide much support to the sector, especially in terms of fund-raising and lobbying for formal recognition. In many instances, as observed in cases 1, 2, 4, 9, and 11, the support structure also facilitates a referral system for matters that paralegals are not able to resolve on their own. This is critical, especially in the multitude of single-person CAOs across the country. However, it is possible that reliance on this very support and referral structure might ultimately contribute to the lack of proactiveness that we encountered in some of the CAOs, which we elaborate on in what follows. More generally, the precise nature, effect, and value of affiliations to umbrella structures is worthy of closer examination than our study afforded, especially in terms of comparing affiliated with nonaffiliated CAOs, which our study did not do.

2. Social Embeddedness and Appropriate Techniques

Overwhelmingly, we found that embeddedness in communities was one of the most facilitating of all determinants with respect to South African CAOs. We understand this to cover many of the more “soft” skills of paralegals that we believe derive from living in the community served by paralegal work. Indeed, we did not witness any negative aspect arising from the proximate location of paralegals to their work – as hypothesized in this project’s overall rubric. Rather, we saw ample evidence of the overwhelmingly positive impact of this close social location, which resulted in attuned sensitivity to local issues combined with an extraordinary capacity to go the extra mile for clients.

In many of the cases we tracked, as well as from our broader interviews, we experienced and were told about paralegals who combined the skills of psychologist, social worker, public servant, and paralegal. We are convinced that this holistic approach is facilitated by the similar and proximate living conditions and spaces between paralegals and clients (even where the geographic distances might be relatively wide), which promotes empathy and enables paralegals to go beyond formal methodologies, as illustrated in the case study set out at the beginning of this chapter, as well as in cases 4 and 5. Evidently, living within the community (or having lived in such circumstances) facilitates an understanding of the dynamics of that community and the value of social harmony in a way that remote lawyering does not. Whatever formal incorporation and/or regulation occurs within the sector, we hope that it is not to the detriment of this somewhat intangible but overwhelmingly positive feature of paralegal assistance.

Social embeddedness, as well, of course, as not being trained and entitled to act as registered lawyers, means that paralegals frequently use mediation techniques. When compared with litigation, mediation is a more informal legal procedure that is often most appropriate for intercommunity disputes, as evidenced in cases 10 and 12. Particularly in rural CAOs, paralegals resolve disputes by negotiating with both parties until a settlement is agreed, and only then going to the magistrate to set down the agreement. This type of settlement is often a more durable solution than the court could implement by itself, and magistrates frequently ask paralegals to mediate in advance to make the system work more smoothly.Footnote ¹¹⁴

The paralegals we interviewed recognized the intrinsic value of creating authentic, lived solutions at the grassroots level within their communities, and not simply referring matters to lawyers for litigation. Indeed, Bheki Shange, a coordinator at one paralegal office, explained to SERI that he wanted the case referral figure to be as low as possible, given that “the nature of the case may not be appropriate for an attorney, the clients may prefer to use a paralegal as a go-between, and in any case, mediation is the best tool for conflict resolution as it allows people to decide the matter for themselves rather than having an imposed solution.” It is for this reason that community-based paralegals have a good relationship with the courts, as mediation as a precursor to litigation promotes harmonious reconciliation, and means that clients often go to court with a ready settlement agreement.Footnote ¹¹⁵ In this way, paralegals within CAOs work to painstakingly build the democratic capacity of their communities brick by brick and question by question.

1. Limited Strategic Capacity

One of the most notable observations from our research is the limited capacity of CAOs to abstract or strategize beyond an immediate firefighting approach to routine cases. As such, the paralegals we monitored appeared unable, unwilling, or uninterested in seeking systemic solutions to everyday problems. Rather, they relied on rolling out the same solutions to frequently occurring problems, such as the wrongful termination of social security benefits, which often involve a mere phone call or the completion of a form. Thus, we were struck, especially through the experiences of cases 1, 2, and 8, by the fact that the paralegals had not considered engaging in information sharing or workshops with the communities they serve in order to educate the public about how to resolve such simple cases, and thereby to lessen their load. A related feature of this nonstrategic approach was the paralegals’ more generalized failure to explain each step of the process to the client, meaning that the client would probably have to come back to the paralegal if the same or similar problem arose again.

In addition, alongside this vacuum with respect to empowering the public to deal with matters themselves, we noticed a certain disempowerment in some of the paralegals in terms of taking matters beyond the first phase of telephone calls or form completion. For example, in case 2 concerning unemployment benefits, the matter was significantly delayed because the paralegal did not know how to escalate the issue without external assistance. Here, we saw a role for better information sharing and education from the umbrella clusters. Further research is necessary to delve into these issues, but it is possible that the degree of passivity we witnessed might relate to paralegals’ attempt to safeguard their position by not sharing knowledge. Alternatively, it might relate more structurally to limited funding (outlined earlier) and/or a weakness in the existing management training programs offered by NADCAO and the other umbrella structures.

2. Weak Management Systems

Our research interviews indicate that there is a generalized weakness in management systems across the sector, which means that individual CAOs, especially the smaller ones in rural areas, struggle with the technical requirements of external donors. The big foreign donors in particular have onerous proposal and reporting requirements that can be crippling to small, understaffed organizations. Typically, the proposals require access to technology, good written English, and the ability to draw up comprehensive budgets. The reports also require constant monitoring, evaluation, and considerable capacity. Such reporting requirements are made more burdensome by the fact that many CAOs do not yet have an effective case log system, making it difficult for paralegals with a waiting room full of clients each day to properly document every client, issue, and resolution. For example, CCJ is six years behind in its reporting, purely due to time restraints, and told us that it has had to accept anecdotal reporting to make the task less onerous for its paralegals.Footnote ¹¹⁶ Concerns over funding also mean that CAO paralegals spend too much of their time preoccupied with raising enough money to cover their operating costs. A vicious cycle thus ensues, whereby CAOs’ lack of funds inhibits their chance of sourcing funding in the future and limits their productivity.

Institutionalization, in this sense, is certainly an aspiration for community-based paralegals working with CAOs. However, as CLRDC director Langa Mtshali explains, enormous infrastructure and capacity-building needs are required for CAOs to be able to cope with the demands of “independence.”Footnote ¹¹⁷ Msomi, paralegal at the Mpola CAO, agreed, stating that CAOs need better knowledge of fundraising, management, and drawing up constitutions and cooperation agreements before making that leap.Footnote ¹¹⁸ To this end, training for community-based paralegals needs to be more consistent across the board, and more frequent. According to Joanne Harding, “we need to move away from the idea that informal training is enough and increase the professionalism of the sector.”Footnote ¹¹⁹ More uniform training would prevent CAOs from being so reliant on their individual staff members, and limit the damage caused by personnel changes.

In terms of increased knowledge sharing, an effective case management system would also be of substantial benefit for CAOs. Just as the Black Sash database captures trends from its casework and feedback on best practice techniques, a case log system accessible by the NADCAO CAO network would be an invaluable training resource and cross-regional research tool by which to identify patterns in socioeconomic problems to create advocacy campaigns. It would also provide the quantitative data required for funding proposals. Such a case management system has been put in place by NADCAO and trialed in certain CAOs. NADCAO’s Central Case Management System is Internet-based; paralegals input data onto a computer and later upload it onto the Internet to be accessed by the centralized data capturer. However, with very low information technology connectivity and limited access to computers in most rural CAOs, the roll-out of the system has had limited success, and NADCAO is exploring ways to circumvent the connectivity challenges.