Blog


2019-09-20
Access to the Justice System


State of access to equal justice in South Africa

The Constitutional Court highlighted the socio-economic and historical conditions prevailing in South Africa, when it stated the following:

"We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great povefty. There is a high level of

unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the

Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the

heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring".

 

The majority of South Africans are unable to access lawyers because of high fees making access to justice a commodity that only the privileged can buy. Many South Africans live

in the rural areas, even travelling to a lawyeds office is a financial battle. According to the Foundation for Human Rights report, access to justice is a significant problem in the

South African context, especially for the poor and vulnerable sections of society. 

 

For people to vindicate their rights, especially the poor and vulnerable, the law has to be in favour of the weak and exposed. lt must provide them with financial and other support.

Section 34 of the Constitution of 1996 guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before court,

or where appropriate, another independent and impartial tribunal orforum. Section 35 of the Constitution of 1996 makes provision for fair trial rights for the criminal accused,

including far reaching rights to legal representation in criminal matters at state expense, Section 34 of the Constitution of 1996 casts the net wider in providing for the right to fair

judicial adjudication of all matters, including civil disputes.

 

Section 34 of the Constitution of 1996 does not make provision for access to courts at the state's expense. This raises the following questions:

(a) how will the poor and marginalised access the court when they don't have

the means to do so?

(b) what is the role of the profession in ensuring the realisation of this right?

(c) how must the state ensure the progressive realisation of this right?

These questions requires an examination of the state of equitable access to justice in the Republic.

ln his speech Chief Justice Pius Langa, as he then was, wrote the following about equal access to justice:

'South Africa has its own unique problems when it comes to access to justice. ln the

face of high levels of crime, the uiminal justice sysfern faces a sedous challenge to

ensure that victims have the satisfaction of knowing that those who harmed them or

their loved ones are brought to justice. Legal representation remains beyond the

financial reach of many South Africans and it is true that more money ensures better

representation. That is not equal access to justice and the Constitution should not

become a tool of the rich".

 

Efforts by the state to deal with reduction of legal costs.

Government has embarked on the efforts of ensuring that legal costs are not a barrier for litigants to have equitable access to justice. Some of the efforts include:

(a) Simplification of court process

On this aspect, maintenance, divorce and domestic violence matters have been simplified for parties to litigate without the assistance of a legal practitioner.

Although the system has assisted litigants, systematic failures of the system has made it cumbersome for litigants to access maintenance, divorce and

protection orders.

(b) Establishment ofstate legal aid system

Legal Aid SA has been established as a vehicle by the state to provide legal services at state expense where substantial injustice would otherwise result. ln

lhe 201612017 financial year, Legal Aid SA took on 444,962 new matters. Of these, 385,972 (87%) were criminal matters and 58,990 (13olo) were civil

mafters. However, Legal Aid SA alone cannot provide the solution to ensuring access to justice for all citizens. South Africa simply does not have the

resources to fund legal assistance in all cases to applicants who are unable to afford the cost of their own representation. Limited budgetary constraints forces

Legal Aid SA to provide and exclude legal aid in certain circumstance.

 

The challenge is that persons who are refused legal aid due to budgetary constraints, have nowhere to go for assistance.

Solutions that may assist in reduction ofcosts and improving access to justice.

Regulation of Pro Bono services.

The South African legal community needs to commit itself, or failing that, be it through legislation or otherwise, be compelled to provide pro bono work. lt is the most

marginalised, vulnerable and indigent members of our society who typically have no legal representation within the civil justice system through a lack of legal representation

including knowledge of their rights. lf mandatory pro bono work is to be successfully implemented in South Africa, then there needs to be enforcement and regulation

mechanism[s] in place to ensure that the quality of the service provided is of a sufficient standard to ensure access to justice for the poor.

 

Deputy Judge President of the Local Division of the High Court in Johannesburg, Phineas Mojapelo, spoke at the annual general meeting of the Johannesburg Attorneys

Association on 12th of September 2018 in Johannesburg

 

Deputy Judge President Mojapelo added that rendering of pro bono services is largely dependent on good will and social scruples of a few well-intentioned legal practitioners.

He said overthe years the attorney's profession has attempted to change this, he pointed out that the rules of the profession make it compulsory for attorneys to provide pro

bono work.

Deputy Judge President Mojapelo said there must be an environment where legal practitioners see the law and the legal system as the vehicle through which the lives of

citizens are enhanced by way of the protection and provision of rights guaranteed by the Bill of Rights. He added that the modern legal system is not a cow to be milked, but a

heritage to be nurtured and preserved as a guaranteed continued existence of civilisation. He pointed out that law is a powerful vehicle to effect positive change in an

unequal society, by making legal service accessible.

 

The Role of Legal Practitioners

(i) The awarding of costs at the conclusion of a trial is to large extent at the discretion of the trial court. The general rule has always been that the

successful party is entitled to costs or put in another form costs follow the results. However, there have been instances where a successful party was

ordered to pay the costs of the proceedings because of having taken hasty action without considering other options. ln the matter of Bekker v Van Niekerk

1960 (2) ECD the Appeal court said the following:

"The Plaintiff in the present matter elected to proceed on ex-pafte application far a Rule Nisi operating as an interim interdict. This has resulted in additional costs being

incurred namely two appearances by counsel, service of the coui process an{l other related matters. Had the plaintiff applied on motion in the ordinary way the matter might

possib/y not have come before couft at all. At the very most I think the plaintiff would have been entitled to have cosls of an unopposed application."

 

(ii) Counsel and legal practitioners must utilise pre-trlal conference and Rule 37 not for debiting further fees but to limit issues so as not to unnecessarily

lengthen trials at great expenses to clients. There are also many instances when settlement is reached on the day of hearing when and if counsel and

attorneys had met long before the day trial costs could be saved.

 

(iii) Lastly giving wrong advice to a client or choosing a wrong and inappropriate route to follow in litigation may very well cost a litigant punitive costs either on

attorney and client or the costs of more than one counsel. lt is such actions by practitioners that drive fear in future litigants and deny such persons access to

justice.

 

Reference: https://www.fhr.org.za M A MAKUME JUDGE OF THE HIGH COURT GAUTENG, LOCAL DIVISION, JOHANNESBURG

                    https://www.derebus.org.za/high-litigation-costs-deprive-the-poor-access-to-justice/ News Reporter at De Rebus in 2018 (Nov) DR 11 .