Access To Justice

Question 1

Outline the main challenges in South Africa to providing access to justice for all

Answer 1

1.​ ​Poverty.
2.​ ​Geographical location of adjudicative institutions.
3.​ ​Physical inaccessibility of adjudicative institutions (for example, to people in wheelchairs).
4.​ ​Lack of knowledge of rights
5.​ ​Inappropriate dispute resolution mechanisms (ie. There is an absence of alternative remedies to
problems/ people go straight to the courts)
6.​ ​Procedural hurdles
7.​ ​Delays in resolution of conflicts.

Question 2

What constitutional provision guarantees access to justice

Answer 2

​S34​ 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’.
·​ ​S35 ​provides that everyone has the right to legal assistance (including criminals).
·​ ​S9 provides that everyone is equal before the law.
·​ ​Bill of Rights​ guarantee’s dignity and equality.

Question 3

. What should the role of law students and law graduates be in improving access to
justice?

Answer 3

·​ ​Provide pro bono services and work for public interest law firms.
·​ ​Campaign for compulsory community service
·​ ​Provide law clinics
·​ ​Lobby for a wider network of courts
·​ ​Lobby for civil legal aid
·​ ​Increase access to basic rights education for the public (CLASI, SLSJ, SAFLI).

Question 4

formal equality

Answer 4

(more minimal than substantive equality) requires ‘sameness of treatment, implying that the adjudication system should be open to everybody in the same manner, irrespective of their circumstance’.

Question 5

substantive equality

Answer 5

means that socio-economic factors leading to differential treatment are removed. For example, people need to be educated to know that they have certain rights (such as access to justice). It’s no good if they have the right (formal equality) but are too poorly educated to know about it (substantive equality).

Question 6

discuss whether pro bono should be mandatory or voluntary

Answer 6

Arguments for mandatory:
1.​ ​Lawyers have a moral responsibility (especially in impoverished countries) to provide free legal services.
2.​ ​Lawyers enjoy profitable monopoly on the provision of legal services so its not unduly burdensome to require pro bono work.
3.​ ​Counters negative attitudes toward the profession.
4.​ ​Failure to provide free legal services violates Section 34 (access to justice).
Arguments against mandatory:
1.​ ​Poor quality services (because people are forced to do work they don’t want to).
2.​ ​Poor will be assigned lawyers not specialized in the relevant field.
3.​ ​Form of conscription that amounts to unworkable tax. Will lead to an increase in costs of legal
services (lawyers will charge clients more to compensate for their pro bono work).
4.​ ​Explosion of litigation (due to increased access to justice).
5.​ ​Practical difficulties of monitoring quality.
6.​ ​Volunteers will be more dedicated than people compelled to provide pro bono work.