Authored By: Thabo Marcellino Adriaanse
University of South Africa
Introduction.
The South African Constitution, since its adoption in 1996, has been the cornerstone of democracy, promising dignity, equality, and freedom for all citizens.[2] Yet, the legacy of colonialism and apartheid continues to shape access to justice, particularly for rural and marginalized communities. Colonial rule systematically dismantled African cultural identities, replacing indigenous values with Western legal and social frameworks. This historical trauma created a “colonized mind” that still influences how many Black South Africans perceive their rights and engage with the legal system today.[3] Internalized oppression, combined with systemic neglect, has produced significant barriers to justice in rural areas, including geographical isolation, economic hardship, limited legal representation, and digital exclusion. These barriers undermine trust in the state’s institutions and perpetuate inequality, resulting in reduced access to courts and legal remedies for vulnerable populations. This article examines how coloniality continues to affect access to justice and explores ways to decolonize both minds and legal structures. It analyses relevant constitutional provisions, case law, and policy frameworks, while proposing reforms to address digital, economic, and systemic barriers. By doing so, it seeks to advance true equality, freedom, and dignity as envisioned and founded on the values in section 1(a) of the Constitution.[4]
Decolonization and Coloniality of the Mind.
The adoption of the Constitution of the Republic of South Africa, 1996, was meant to be the light at the end of the tunnel for those oppressed by colonialization, signalling a shift from historical trauma towards a “society based on democratic values, social justice, and fundamental human rights.”[5] It aimed to decolonize South Africa by encouraging forgiveness, reconciliation, and unity between all racial groups. But how could those who suffered for so long forget their pain and loss? The true injustice lies in the belief that negotiations and a written document could mend wounds that had not yet healed.[6]It was a simple cover-up, but the damage was already done. Today, after nearly thirty years in a so-called democratic country, generational trauma has scarred the minds of many black South Africans. The mind is a powerful tool; when something is repeatedly represented as true, it becomes believed.
While the Constitution sparked hope by ending physical oppression, the psychological aspect remained. The mind stayed colonized, creating internalized oppression and an inferiority complex.[7] This affects the way Black people view themselves, constantly comparing themselves to White South Africans and internalizing feelings of inferiority. It also shapes their perception of the justice system, undermining confidence in seeking legal remedies, especially in rural areas where access to legal representation, socio-economic rights restoration, and legal aid is limited, and focused on the more wealthy or advantaged groups, predominantly the White South Africans who occupy those suburban areas as well.[8] Thus, many still believe such remedies are for more privileged groups, reinforcing the ‘I am still colonized’ mentality. This internalized oppression affects legal consciousness and trust in legal institutions. Marginalized communities, facing higher crime rates and systemic neglect, often lack hope and trust in justice, which further discourages them from seeking legal redress.[9]
Systemic Barriers to Access to Justice in Rural Areas in South Africa.
Marginalized rural communities face significant systemic barriers to justice, largely due to their distance from urban centres where courts and legal services are concentrated. Geographical and infrastructure challenges create financial burdens, as transportation costs to distant courts can be prohibitively expensive, leading many to court appearances or to forgo seeking justice altogether.[10] Economic barriers further compound the issue: legal representation is often unaffordable for disadvantaged groups. While the state provides legal aid, high demand results in overburdened public defenders, affecting the quality of justice. This undermines principles of the rule of law, including affordability, quality of legal advice, and impartiality (Gwangudi,2002).[11] Additional Barriers include the digital divide, with limited technology access and low literacy rates in rural areas and many children do not attend school, or do so irregularly, limiting technological knowledge.[12] This environment fosters ‘street life’ and gang violence, creating fear and intimidation that discourages people from seeking justice, and policing or street patrols. The negative attitudes of police concerning gender-based violence and crime in these areas also indirectly affect confidence in the justice system, contributing to higher rates of unreported crimes.
A case supporting this is The Minister of Police v K (403/2019) ZASCA 50 (a summary of 6 May 2020).[13] Where the respondent had been assaulted, robbed of her personal belongings, abducted and raped, and suffered psychological trauma and physical trauma, yet the police were in search of her after she was reported missing by her cousin. The police, who are meant to follow procedure and their duties and ensure that they find Ms K, aborted the search in the early hours of the morning, on 10 December 2010, and no perpetrators were arrested or convicted.[14] This is the reason for the action against the Minister of Safety and Security, so that a reasonable and effective investigation can be conducted for the restoration of justice for all that she had suffered. Including the negligence of the police and not furthering their search on the dunes, increased her suffering. However, the Supreme Court of Appeal found the High Court’s approach fundamentally flawed, at the same time delaying her right to justice when also questioning the findings of Ms K as not enough for the continuation of the case.[15] Ultimately, the appeal was upheld due to court costs, which unfortunately meant that the police won the case indirectly while Ms. K was denied justice. Thus, proving that access to just always depends on how matters are approached in our justice system. Section 34 of the Constitution of the Republic of South Africa, 1996, was thus breached and not fulfilled in this matter.
Legal and Policy Framework.
The Constitution of the Republic of South Africa, 1996, provides the foundation for access to justice. Section 9 (1) guarantees that “everyone is equal before the law and has the right to equal protection and benefit of the law.”[16] Section 34 further provides 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.”[17] Which are usually read together in our law. These rights are particularly relevant to disadvantaged groups in rural areas, as well as the abuse of women in these areas, where systematic barriers often impede access to justice. Legal Aid South Africa operationalizes these constitutional rights by providing state-funded legal representation or aid to those who cannot afford it. And acting fairly, impartially, without prejudice, and in good faith as an independent institution.[18] However, access to legal aid remains constrained by procedural requirements and resource limitations, which can undermine its effectiveness in rural communities.
This tension was highlighted in Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28.[19] The case examined whether the right to legal representation at state expense arises directly from section 34 or is limited to cases where substantial injustice would otherwise occur. The High Court initially ruled in favour of the miners seeking legal aid under section 34, but on appeal, it was held that legal aid could not be claimed unless it fell within the procedures and regulations of the Legal Aid Act.[20] The Constitutional Court found that section 34 does not automatically entitle everyone to state-funded legal representation, rather it must be assessed in context, considering the nature of the rights involved and the availability of resources. The Court emphasized that section 9 (3) and section 34 must be read together, but financial constraints and procedural rules may limit access.[21] Thus, while the Constitution guarantees equal access to justice, the practical application of this right in rural areas is mediated by the Legal Aid Act and case law, which balance rights with resource constraints. This creates systemic barriers for marginalized communities, who often lack the means to meet procedural thresholds, reinforcing inequality in access to justice.
Conclusion and Recommendations for Reform.
Strengthening legal aid and community paralegal services in rural and disadvantaged communities is essential. Increasing research on local issues will enhance understanding of community-specific challenges, enabling Legal Aid South Africa to distribute funding more effectively.[22] Given budgetary constraints, Legal Aid often neglects under-researched cases to conserve resources. Expanding access to courts, legal services, and decentralized justice can address this imbalance. Currently, the legal system prioritizes urban areas and high courts, where funding and resources are more readily available. Decentralizing justice aims to create affordability, accessibility, and equality, tailoring services to community needs rather than imposing top-down solutions. This approach aligns with sections 9 and 34 of the Constitution of the Republic of South Africa.
Improving court infrastructure in rural areas will increase access to legal representation. New policies promoting reform can boost public participation, fostering greater awareness of justice rights. Opening workshops and short course programmes that the youth can partake in that educate people on pertinent information concerning legal rights and obligations.[23] To avoid selective funding, Legal Aid must prioritize private non-criminal cases, as denying representation to poor South Africans due to budgetary constraints undermines section 34.[24] Introducing mobile legal aid and governmental intervention to reduce costs can help achieve this. Digital inclusivity is another key recommendation, particularly in healthcare, education, and economic participation. Customized digital literacy programmes, affordable technology, and infrastructure upgrades such as computers in schools, libraries, and internet access can bridge the digital divide, advancing socioeconomic development. Coupled with expanded education and awareness campaigns on constitutional rights, these measures can empower communities and promote inclusive justice. Therefore, decolonizing the legal framework and policies is crucial to transforming the justice system and socioeconomic rights standards. By reforming legal representation and aid, trust in the state can be restored, fostering a unified, democratic society with equal social justice and fundamental rights for all.
Being selective in ensuring access to justice, because the area of need is too unconventional for the legal system, is basically a form of colonization. Rural areas or communities already suffer from exclusivity due to systematic neglect and little to no access to justice. Why continue this behaviour in a new democratic society? Why not focus on fixing where it may seem impossible to fix? Many of our youth in Black rural communities need to believe in our justice and legal systems; to feel that way, there needs to be proof that they care. Even if it takes amending laws, publishing new Acts by our President, who is the head of the executive, which foster change in vulnerable communities, to promote equality, fairness and inclusivity for all. The combination of the Parliament, assenting to new Bills and signed by the President (see relevant sections of the Constitution), that help invoke a sense of urgency in our country for the betterment of vulnerable communities.[25] For it should be an emergency of the state, still today, vulnerable communities are neglected and forgotten, as it does not keep the candlelight of a democratic society fully ignited. Democracy is still not fully achieved if this matter is not addressed with immediate effect and urgency. To change minds, we must first act upon changing vulnerable communities; providing legal aid for legal representation, addressing socioeconomic issues, and ridding the idea of social classification to ensure a proper redress for access to justice. Thus, healing the minds of those suffering from internalized oppression. Through the inspiration of the philosophy of Ubuntu, the essence of the Constitution is that if one of us suffers, we all suffer. Let us build and restore the image of our people with the President’s intervention to help “promote the unity of the nation and that which will advance the Republic” and the values of the Constitution as the Supreme law of the Country.[26]
Bibliography.
- Constitution of the Republic of South Africa, 1996.
- Ebenezer Durojae, Gladys Mirugi-Mukundi and Oluwafunmilola Adeniyi, ‘Legal Empowerment as a tool for engendering access to justice in South Africa’ (2020) 20(4) International Journal of Discrimination and the Law 224 https://doi.org/10. 1177/13582291209602.
- Gardner Mwansa, Matipa Ricky Ngundu and Zolisa Mkwambi, ‘Bridging the digital divide: exploring the challenges and solutions for digital exclusion in rural South Africa’ (2025) Discover Global Society [2025] 227 (doi:10.1007/s44282-025-00189-2) (accessed 22 Feb. 26).
- Henny van As, ‘Legal Aid in South Africa: Making justice reality’ (2005) African Law 20.
- Jackie Dugard and Nompumelelo Seme, ‘Access to justice in South Africa’ in The Routledge International Handbook on Decolonizing Justice (1st edn, Routledge 2023) (accessed 22 Feb. 26).
- Legal Aid South Africa Act 39 of 2014, as amended by the Judicial Matters Amendment Act 8 of 2017 (effective 2 August 2017) and Judicial Matters Amendment Act 15 of 2023 (effective 3 April 2024).
- Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28.
- Minister of Police v K [2020] ZASCA 50 https://www.saflii.org/za/cases/ZASCA/2020.50media.pdf (accessed 21 February 2026)
- Tshepo Lephakga, ‘Reclaiming God and Reclaiming Dignity: the history and future of black liberation from internalized oppression’ (2012) 38(2) Studia Historia Ecclesiastica 3.
[1] I wish to be transparent and acknowledge my use of Grammarly for aid with formulating sentences and structuring ideas and key points for this article, all of which are my own original work.
[2] Constitution of The Republic of South Africa, 1996. Preamble, p 1.
[3] Morgan Ndlovu, ‘Coloniality of Knowledge and the Challenge of Creating African Futures’ (2018): Journal of African Studies, p 99.
[4]Constitution of the Republic of South Africa, 1996. Chapter One, s 1(a).
[5] Constitution of The Republic of South Africa, 1996. Preamble, p 1.
[6] Tshepo Lephakga, ‘Reclaiming God and Reclaiming dignity: the history and future of black liberation from internalized oppression’ (2012) 38(2) Studia Historiae Ecclesiasticae p 14.
[7] Tshepo Lephakga, ‘Reclaiming God and Reclaiming dignity: the history and future of black liberation from internalized oppression’ (2012) 38(2) Studia Historiae Ecclesiasticae p 2.
[8] Tshepo Lephakga, ‘Reclaiming God and Reclaiming dignity: the history and future of black liberation from internalized oppression’ (2012) 38(2) Studia Historiae Ecclesiasticae p 3.
[9] Henny van As, ‘Legal Aid in South Africa: Making justice reality’ (2005) African Law, p 20.
[10] Ebenezer Durojaye, Gladys Mirugi-Mukundi and Olufunmilola Adnji, ‘Legal empowerment as a tool for engendering access to justice in South Africa’ (2020) 20(4) International Journal of Discrimination and the Law, p234.
[11] Ebenezer Durojaye, Gladys Mirugi-Mukundi and Olufunmilola Adnji, ‘Legal empowerment as a tool for engendering access to justice in South Africa’ (2020) 20(4) International Journal of Discrimination and the Law, p227.
[12] Gardner Mwansa, Matipa Ricky Ngandu and Zolisa Mkwambi, ‘Bridging the digital divide: exploring the challenges and solutions for digital exclusion in rural South Africa’ (2025) Discover Global Society [2025] doi:10.1007/s44282-025-00189-2 (received 21 January 2025; accepted 16 May 2025; published 9 June 2025) (accessed 22 February 2026).
[13] The Minister of Police v K [2020] ZASCA 50 (6 May 2020).
[14] The Minister of Police v K [2020] ZASCA 50, 1-2 (media summary, 6 May 2020).
[15] The Minister of Police v K [2020] ZASCA 50, 4 (media summary, 6 May 2020).
[16] Constitution of the Republic of South Africa, 1996. Chapter Two, s 9 (1)
[17] Constitution of the Republic of South Africa, 1996. Chapter Two, s 34
[18] Legal Aid South Africa Act 39 of 2014 (as amended), s 5.
[19] Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28.
[20] Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28, para 26
[21] Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28, para 61
[22] Ebenezer Durojaye, Gladys Mirugi-Mukundi and Olufunmilola Adnji, ‘Legal empowerment as a tool for engendering access to justice in South Africa’ (2020) 20(4) International Journal of Discrimination and the Law, p228
[23] Legal Aid South Africa Act 39 of 2014 (as amended), s 3(c).
[24] Jackie Dugard and Nompumelelo Seme, ‘Access to justice South Africa: Not yet Uhuru but not quite Sisulu: an examination of the decolonizing journey from colonial-apartheid rule’ in The Routledge International Handbook on Decolonizing Justice (1st edn, Routledge 2023) 349.
[25] Constitution of The Republic of South Africa, 1996. Chapter 4, s 79(1) and s, 81
[26] Constitution of The Republic of South Africa, 1996. Chapter 5, s 83(c).
