Abstract
Section 34 of the Constitution enshrines the right of access to courts. It provides that “[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Although the right of access to courts is constitutionally entrenched, many South Africans lack access to justice.
Access to justice in South Africa is significantly impeded by high levels of poverty and illiteracy. Furthermore, legal fees and other costs associated with accessing the South African civil justice system are expensive and often prohibitive. Even where individuals are able to access the courts, there is a risk that they may be liable for costs if they are unsuccessful in the litigation.
The primary South African source of legal services provision for persons who cannot afford private legal services is legal aid funded by the government, which is provided through Legal Aid South Africa (Legal Aid SA). Legal Aid SA is a national public entity established by the Legal Aid South Africa Act 39 of 2014. Legal Aid SA provides access to free legal services to indigent clients through a combination of justice centres and satellite offices. The satellite offices operate on a smaller scale, compared with the justice centres. According to Legal Aid SA’s annual report for the 2020/2021 financial year there were 297 206 new legal aid matters, of which 269 388 (91%) were new criminal matters and 27 818 (9%) new civil matters. 372 830 indigent and vulnerable people were provided with legal representation and legal advice. There was a 44% decrease in the number of new legal aid matters compared with the previous financial year. There were 23% fewer criminal matters and 46% fewer civil matters when compared with the previous financial year. Legal Aid SA also experienced significant budget cuts during the above period. Legal Aid SA’s ability to provide access to justice has thus clearly been impeded in recent times, owing largely to the COVID-19 pandemic.
Legal Aid SA’s core service is the provision of legal aid in criminal matters. Legal Aid SA concludes cooperation agreements with various cooperation partners, such as university law clinics, throughout South Africa, to provide legal aid to indigent clients in civil matters. Unfortunately this is not enough to enable the significant demand for free legal aid to be sufficiently met. It has accordingly been submitted that there is a moral as well as a legal imperative for legal professionals across the board to contribute to improving access to justice for the poor. This is also necessary since resource constraints hinder the provision of legal aid and have an impact on the determination of the threshold for the means test. The particularly low threshold excludes the numerous deserving individuals from accessing free legal aid.
The article considers various ways in which access to justice may be advanced for those who need it most. In this regard, for example, reference is made to section 35(3) of the Constitution, which enshrines accused persons’ right to legal representation in criminal matters. As mentioned, section 34 of the Constitution affords everyone the right of access to courts. No distinction is drawn between civil and criminal matters. The predominance of legal aid in criminal cases has therefore been criticised by several authors, as it fails to interpret section 34 sufficiently widely to include legal representation in civil matters, in line with international instruments.
Previously, legal practitioners were required to provide 24 hours’ free legal aid per annum to indigent members of the South African community who pass a means test. Unfortunately, following the establishment of the Legal Practice Council in terms of the LPA, which was promulgated on 29 October 2018, the 24 hours requirement appears to have been done away with. Currently, it is unclear whether legal practitioners are obliged to perform pro bono work and, if so, who is responsible for monitoring pro bono hours and how the obligation is enforced.
In forma pauperis proceedings may be brought in terms of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (Uniform Rules). The mechanism enables the Registrar of the High Court to refer indigent individuals who have assets worth less than R10 000 to legal practitioners in private practice for legal assistance. Private practitioners are not compensated, but are able to recover their fees and disbursements at ordinary tariff rates if the litigant is awarded costs.
Another way in which access to justice in South Africa is facilitated is through the Small Claims Courts. There are numerous Small Claims Courts throughout South Africa, and these courts adjudicate claims of less than R20 000. Legal representation is not permitted in the Small Claims Courts, and claims are adjudicated by small claims commissioners. The Small Claims Courts have broad civil jurisdiction. Natural persons may sue in the Small Claims Courts; however, juristic persons may only be sued (they may not institute proceedings), and the government may not be a party to Small Claims Court proceedings.
Consumer courts and other consumer protection mechanisms have also been established throughout South Africa in terms of the Consumer Protection Act 68 of 2008 (CPA). The CPA enables the lodging of consumer complaints in a variety of forums. Section 4 of the CPA regulates who may institute consumer complaints and includes, for example, “anyone who acts as a member of, or in the interests of, a group or class of affected persons” and “anyone who acts in the public interest”. Consumer disputes may be lodged in various forums, including the National Consumer Tribunal, the National Consumer Commission, the appropriate ombudsman’s office, consumer courts and criminal courts. Disputes may also be resolved through alternative dispute resolution.
It is also worth keeping in mind that it is possible for individuals to take issue with the fees charged by their legal representatives. The LPC may, in terms of the LPA, appoint a committee at the request of any person who has locus standi to do so, to assess the fees and reasonable disbursements payable to a legal practitioner in respect of the performance of their work.
It is also possible to fund civil litigation by entering into contingency fees agreements or through third party litigation funding. Class actions are also increasingly used as a mechanism to promote access to justice in South Africa. The class action mechanism is particularly useful in relation to the recovery of individually non-viable claims. Especially in the South African context, with its high levels of unemployment, illiteracy and poverty, the existence of social, psychological and financial barriers may mean that, but for the class action, individual class members would not have enforced their claims independently.
Finally, the article also considers court-annexed mediation as a tool to advance access to justice in South Africa.
Keywords: access to courts; class action; courts; justice; legal access; legal fees; mediation
- This article’s featured image by Nikko Macaspac was obtained from Unsplash.
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