Authored By: Mmudi Mogashoa
From 1910-1994, before the establishment of the Constitution, South Africa was characterized by division, inequality, and injustice. However, the introduction of the interim Constitution in 1994, followed by the Constitution of the Republic of South Africa in 1996, presented a chance to heal past divisions and created a society that is based on democratic principles and the improving the lives of individuals.[1]
Given the chance to create a more just nation, the Bill of Fundamental Rights was also embedded in the final Constitution to avoid the repetition of South Africa’s historical wrongs.[2] Consequently, the final Constitution and The Bill of Fundamental Rights were thus founded on the core values of human dignity, equality and freedom.
One could argue that there is no better way to guarantee that these fundamental values are a lived reality for South Africans and not just an ideal than ensuring that the citizens have equal and fair access to justice.
Although South Africa has recognised the right for individuals to access justice, this article will explore whether South Africa has taken intentional and effective measures to ensure that justice is easily accessible to the public. This article will further discuss the persistent barriers that prevent equal access to justice, will propose possible reforms and will assess the progress South Africa has made.
The importance of promoting inclusive and progressive access to justice.
Section 34 of the Constitution of the Republic of South Africa, 1996 provides that “Everyone 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”. [3] This provision guarantees that everyone, regardless of background or socioeconomic status, has an equal chance to participate in the legal system and that their rights are upheld. [4] In addition, it guarantees that the rights guaranteed by the Constitution are not only symbolic but are also protected and upheld through effective remedies that address the rights of those who have been violated. However, as much as the importance of promoting inclusive access to justice is emphasized, persistent barriers exist which hinders the equal access to justice.
Structural barriers to accessing equal access to justice.
Poverty
Poverty is a recurring issue in South Africa, and it is still challenging to implement adequate reforms to address it. Prior to the Constitution, the effects of colonialism and apartheid had left behind long-standing problems like social instability, unemployment, lack of access to productive resources and poor education. It is no secret that these systematic challenges that were introduced by the apartheid regime have had lasting effects on ordinary South African citizens, with poverty becoming a generational problem and a cycle that citizens struggle to break out of due to continuous unemployment, inadequate education and social instability.
According to research, the average salary for a South African citizen is R31,058, or roughly USD 1650. [5]These wages do, however, differ depending on different factors, such as location, experience, and education. These factors make it difficult for South Africans to afford legal aid because their monthly salaries can be as low as R6000.[6] This economic inequality highlights the financial challenges that regular people must overcome in order to obtain justice.
Recent studies further provides that hourly rates of legal professionals, excluding VAT, are as follows: Candidate Attorney: R1 000.00; Junior Attorney: R1 800.00; Senior Attorney: R2 800.00; Senior Counsel: R3 000.00 – R4 400.00; Junior Counsel: R700.00 – R1 700.00.[7] This shows that a South African household would need to sacrifice about a week’s worth of income in order to pay for an hour of consultation with an average lawyer, demonstrating how costly access to legal aid is for the average South African. This illustrates how poverty continues to be a major challenge to justice, as financial constraints prevent citizens from seeking legal assistance.
Delay in resolution disputes
Delays in dispute resolution are another notably persistent obstacle that hinders access to justice. The legal principle that “justice delayed is justice denied” holds significant importance in the context of South African law. Whereby lengthened litigation diminishes the purpose of the justice system. The Sexual Violation at Bergview College: Eastern Cape DoE and Deputy Minister case is a clear example of how prolonged litigation undermines the goal of the legal system. In this case, the Portfolio Committee postponed concluding the investigation into the alleged sexual violation of a seven-year-old child from Matatiele in the Eastern Cape. In addition to undermining public confidence in the legal system, the delay confirmed the belief that the police services and the legal system are both unable in giving regular South Africans fair access to the courts. People still stress the importance of being quick and responsive when looking into and resolving cases because they think that this is how effectively the legal system operates.
Complexities in concurrent jurisdiction
The difficulties associated with concurrent jurisdiction represent yet another major obstacle. A number of South African courts, including the High Courts and Magistrate Courts, have the same jurisdiction over the same kinds of cases, allowing multiple courts to hear a particular case. For example, the Standard Bank of South Ltd v. Mpongo case confirmed that even if a Magistrate court has jurisdiction over certain matters, the High Court is still obliged to hear a case that falls within its jurisdiction. This case’s ruling also emphasized that the High Court cannot turn down a case just because a lower court has the jurisdiction to hear it.
On the one hand, this is advantageous since it guarantees that individuals have access to multiple forums when pursuing justice, which enhances their ability to exercise their Constitutional right to access courts, as guaranteed in section 34 of the Constitution. This provides individuals with the choice to choose the forum or court that is best suited for their needs without courts refusing to hear their matter due to procedural technicalities.
But as beneficial as this flexibility is, it also presents a hidden barrier. Due to increased court costs and the requirement for legal counsel, for example, litigating in the High Court is more costly. This may result in many low-income litigants being forced to appear in Magistrate Courts, not voluntarily but because of financial limitations. Since Magistrate Courts are less expensive than High Courts, one could argue that low-income litigants should only use them. However, there are difficulties with this as well. It is crucial to remember that relying too much on Magistrate Courts may cause them to take longer to issue decisions, which could ultimately cause disputes to be resolved more slowly. Resolution disputes may be impacted by a lack of resources and a high caseload. Delays may also result from pending decisions, the complexity of the legal system, numerous trial transcripts that contain testimony or scientific treaties, and more.
Geographical location of adjudication Institutions
Apart from the monetary strains and judgment delays brought on by the intricacy of South African courts’ concurrent jurisdiction, geographic limitations are also taken into account because they significantly restrict access to justice. South Africa’s high courts, for example, are primarily found in urban areas, so litigants in rural or remote areas will need to make financial accommodations in order to access these courts. This is yet another unspoken obstacle that concurrent jurisdiction creates. This geographic disparity continues to restrict access to justice based on a person’s location, which further violates the constitutional principle of equality before the law, as guaranteed in Section 9 of the Constitution. Legal aid circuits and virtual hearings are two examples of developments that have been made to address this, but they are still insufficient in areas with inadequate digital infrastructure.
Recent Developments
Notwithstanding the ongoing obstacles that impede access to justice, South Africa acknowledges the significance of ensuring that common people have equitable and equal access to the legal system. To overcome these obstacles, numerous attempts have been made. To break down language barriers, South Africa, for example, has attempted to use artificial intelligence (AI) as a language translator. This aims to translate complex legal terminology or legal jargon and facilitate legal communication between legal experts and non-English speakers in the nation, thereby increasing access to justice.
By using Online Dispute Resolution (ODR), a technology-based dispute resolution process, as well as virtual court proceedings, in place of conventional court proceedings, South Africa has further employed creative approaches to address access to justice. By offering quicker and easier dispute resolution, this approach increases efficiency by enabling litigants to rely on both traditional courts and technological methods to have their cases resolved. Additionally, this lessens the backlog of cases in overworked courts. Because it removes geographic limitations, online dispute resolution also offers affordability, accessibility, and convenience by enabling people in rural and remote areas to access legal proceedings from the comfort of their own communities.
South Africa uses alternative dispute resolution procedures like mediation, arbitration, and other tribunals in addition to the Online Resolution dispute as a substitute for traditional courts. By avoiding the complications and delays of traditional litigation, these options give people the chance to reach faster and more effective resolutions. These initiatives demonstrate South Africa’s growing resolve to address the enduring obstacles and complexities and guarantee that equitable and fair access to justice is not only a constitutional guarantee but also a reality for all South Africans.
Proposed solutions
Further legal reform could aid in resolving the complications associated with concurrent jurisdiction, even though South Africa has made admirable efforts to address the obstacles that restrict equal access to justice. Another reform that could be considered is that the types of cases each court may hear should be clearly stated in a well-written and understandable law. For instance, Magistrates’ Courts may have jurisdiction over claims under R500,000, while the High Court should only hear cases over R500 000. This would minimize needless delays and litigation expenses, guarantee proper forum selection, and lessen confusion.
Moreover, simple cases that belong in the lower courts’ jurisdiction should not be allowed access to the High Courts. This reform would preserve judicial resources, reduce case backlogs, and promote greater procedural fairness by preventing wealthy litigants from selecting the High Court just because they can afford it.
Additionally, a fast-track system for settling jurisdictional disputes ought to be implemented. By doing this, courts would be able to swiftly resolve any jurisdictional issues before moving on to other cases, saving parties from drawing out and expensive proceedings.
In the end, these changes would make the legal system more efficient, clear, and well-structured. Particularly for litigants with limited resources who are most impacted by financial and procedural obstacles, the justice system would become more equitable by reducing the jurisdictional overlaps between courts and guaranteeing equitable access regardless of income level.
Conclusion
Access to justice is fundamental to the rule of law and is enshrined in our Constitution as part of the promise of dignity, equality and freedom which is at the heart of a democratic society. Since the end of apartheid, South Africa has come a long way with constitutional rights and technological advancements, alternative dispute mechanisms that have helped break some of the barriers to access to justice.
Nevertheless, there are still significant barriers to equal access to justice including poverty, jurisdictional complexity, geographic disparities, and lengthy delays, which reinforce historical inequalities. However, it is evident that change is happening and that South Africa has started to address these issues through initiatives, showing a commitment to turning the promise of justice into a reality for all.
However, as discussed above, more reforms are necessary to enable South Africa to overcome both visible and invisible barriers to justice. For this reason, as much as there are persistent barriers that are evident, South Africa just needs to continue developing and maintaining the reforms that are already in place and additional reforms to assist with access to justice, just so that the country can move closer to becoming an inclusive and democratic society, as envisioned in the final Constitution.
Reference(S):
[1] Constitution of the Republic of South Africa, 1996- Preamble | South African Government
[2] Olivier et al “Constitutional issues” in Social Security: A Legal Analysis (ed Olivier) (2003) 52.
[3] Chapter 2: Bill of Right, 1997, s34
[4] South African Human Rights Commission, High Court ruling recognises access to justice as fundamental human rights ( Feb.15, 2019), https://www.sahrc.org.za/index.php/sahrc-media/opinion-pieces/item/1770-high-court-ruling-recognises-access-to-justice-as-a-fundamental-human-right
[5] Remote People, Average salary in South Africa for 2025, https://remotepeople.com/countries/south-africa/average-salary/
[6] Department of Employment and Labour, National Minimum Wage (NMW) (Dec.18, 2024) https://www.labour.gov.za/national-minimum-wage-%28nmw%29-commission-recommends-cpi-+-1-5-adjustment-for-2025-and-invites-further-proposals
[7] Litigation costs estimates| Schlieman Attorneys (2020/04)
