Authored By : Olwethu Princess Nxumalo
University of Fort Hare
Abstract
This article interrogates the paradox between South Africa’s constitutional guarantee of equal access to justice and the reality that the justice system remains disproportionately accessible to economically advantaged individuals. Section 34 of the Constitution enshrines the right of everyone to have disputes resolved by a court or tribunal.1 Yet barriers such as litigation costs, geographic inequality, and limited legal aid undermine this promise. Drawing on case law (Social Justice Coalition v Minister of Police, Legal Aid Board v S),2statutory frameworks (Legal Practice Act; Legal Aid South Africa Act),3and scholarly commentary, the article argues that while the legal framework is robust, structural inequalities persist. It concludes that reforms in legal aid, pro bono obligations, and community-based dispute resolution are essential to bridge the gap between constitutional ideals and practical realities.
Introduction
Access to justice is a cornerstone of constitutional democracy. Section 34 of the Constitution,4 guarantees that “everyone has the right to have any dispute 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.” Despite this, disadvantaged communities struggle to enforce their rights due to systemic barriers. This article explores whether the justice system primarily benefits the economically advantaged, despite constitutional
Legal Framework
The Constitution provides a strong foundation for equal access to justice. Section 34 guarantees access to courts,5 while section 9 ensures equality before the law.6 Complementary legislation, such as the Legal Aid South Africa Act seeks to provide representation for indigent persons.7 However, scholars argue that these frameworks often create “unfulfilled expectations” because implementation is weak.
8 The Legal Practice Act introduced pro bono obligations for attorneys but enforcement remains inconsistent.
9 Vulnerable groups, especially women, continue to face barriers despite formal guarantees.
Judicial Interpretation
South African courts have acknowledged the challenges of access. In Social Justice Coalition v Minister of Police,11 the Constitutional Court highlighted systemic inequalities in policing and access to justice in poor communities, noting that disadvantaged groups often face constructive refusals of remedies. Similarly, in Legal Aid Board v S the court stressed the importance of legal aid in criminal matters, recognising that without representation, indigent accused persons cannot meaningfully exercise their rights.12 Yet resource constraints mean that many civil litigants remain excluded.
Critical Analysis
a. Financial costs: Litigation in South Africa is prohibitively expensive. Court fees, attorney charges, and expert witness costs place justice beyond the reach of the poor. Economic inequality translates directly into unequal access to legal remedies.
13 Geographic inequality: Rural communities face limited access to courts and legal practitioners. This geographic divide exacerbates socio-economic exclusion.
14Legal Aid limitations: Legal Aid South Africa guarantees.
primarily focuses on criminal matters, leaving civil disputes under-serviced. This gap disproportionately affects poor litigants in areas such as housing, labour, and family law.
The role of alternative mechanisms
King IV’s emphasis on stakeholder inclusivity and legitimacy in governance highlights the importance of non-judicial mechanisms. Community-based dispute resolution and mediation can provide affordable alternatives. However, without state support, these mechanisms remain underutilised.
Towards reform
To bridge the gap between constitutional ideals and reality, reforms are necessary: Strengthening Legal Aid South Africa to cover civil disputes more comprehensively. Enforcing pro bono obligations under the Legal Practice Act. Expanding community based dispute resolution mechanisms. Leveraging technology to provide remote access to courts and legal advice.
Conclusion
The South African justice system, while constitutionally inclusive, remains practically skewed towards the economically advantaged. Case law and scholarship demonstrate that disadvantaged groups face systemic barriers in accessing remedies. Unless reforms strengthen legal aid, enforce pro bono obligations, and expand alternative dispute resolution, the constitutional promise of equal access to justice will remain aspirational rather than real.
BIBLIOGRAPHY
Case laws
➢ Legal Aid Board v S* 2009 (1) SA 474 (CC)
➢ Social Justice Coalition v Minister of Police [2022] ZACC 27
Article journals
➢ L Greenbaum “ Access to justice for all: a reality or unfulfilled expectations?” De Jure (2020)
➢ Ebenezer Durojaye, Gladys Mirugi-Mukundi, & Oluwaseun Adeniyi “Legal empowerment as a tool for engendering access to justice in South Africa” International Journal of Discrimination and the Law (2020)
Books
➢ Dennis Davis, Walter D. Geach, & Tshepo Mongalo “ Companies and Other Business Structures in South Africa” Oxford University Press (2013)
Legislation
➢ Legal Aid South Africa Act 39 of 2014
➢ Legal Practice Act 28 of 2014
➢ Section 9 of the Constitution of the Republic, 1996
➢ Section 34 of the Constitution of the Republic of South Africa, 1996 Other
➢ King IV Report on Corporate Governance for South Africa, 2016
