Opinionista Dale T. McKinley 21 May 2015

Civil society and the Constitution – whither access to justice?

At the heart of the civil society’s roller coaster relationship with the Constitution over the last 20 years has been the consistently large gap between written promise and lived reality, between stated intent and actual practice. Nowhere is this gap more apparent than in respect of access to justice.

The gap cannot hope to be filled if we understand access to justice in the way President Zuma does. In other words, that it is largely about “citizen education about the justice system … [about] people need[ing] to know their basic rights, the different courts and other structures they can have recourse to when they have problems.”

Rather, as one of Zuma’s own ministers, Deputy Justice Minister John Jeffery has perceptively noted, a more holistic understanding encompasses people actually being able effectively to make use of all of the rights-based ways and means and institutional avenues as set out in the Constitution to realise both immediate and longer-term social, economic and political justice.

Unfortunately, the lived reality/actual practice that holds dominant sway in South Africa is one in which the ability to access justice is tied directly to political and economic position, power and wealth. In other words, access to justice has largely become politically and socio-economically commodified. For the majority of people in South Africa – who are poor/ working class – this has meant that access to justice has become more of an occasional privilege, often dependent on others, rather than a regularly enjoyed and independently realised right in itself.

As veteran Pretoria-based community and union activist Mashao Chauke argues: “My experience, which has been shared by most of the poor people out there, is that we feel alienated, you know, side-lined … I think that the system itself [is built so] a few people will benefit at the expense of the majority.”

There is a double-bind here for poor and working class people. On the one hand, accessing ‘the system’ (i.e. the legal and institutional architecture) as part of the broader struggle to access justice is difficult enough on its own. In this respect, human rights lawyer Simon Delaney reminds us the vast majority of courts are themselves still “located in places [that] are there to serve a (privileged) minority … it’s still the domain of middle class, upper class folk.”

On the other hand, even when that ‘system’ is accessed the generalised experience is one of prejudice and hostility and most often undermining of both personal and collective human dignity. So for example, while the Constitution itself has been hailed and affirmed by many as ‘transformative’, the very judiciary that is constitutionally mandated and entrusted to administer justice – through the Constitution – has struggled to transform, on racial, gender and ideological grounds. The quality and character of the judiciary becomes crucial precisely because it is that judiciary’s interpretation of the rights framework (at whatever level) as well as the separation and boundaries of their powers in the Constitution that directly impacts on those seeking justice and equality through the legal system.

A key contributor to this historicised access challenge is the fact that in the post-Apartheid period, one of the most effective components of Apartheid-era civil society – human rights/ public interest lawyers – has become a shadow of its former self.

Even if South Africa now has a publicly-framed and funded Legal Aid Board (LAB) which is supposed to provide free, easily accessible legal assistance and representation to those who cannot afford private legal counsel, the LAB does not take up civil rights matters. Further, it is hopelessly over-burdened and under-funded and thus simply cannot fulfil the stated promise of adequately and competently providing legal assistance and representation in criminal matters, many of which now involve the criminalisation of those exercising their Constitutional rights such as gathering/ protest.

This has meant that the burden of taking up civil rights matters has, since 1994, been shouldered by a much-reduced collection of civil society legal outfits, many of whom are over-burdened. Add to this, the massive haemorrhaging of community-based paralegals that historically provided the most informed and useful means of legal advice and representation for the poor and working class, especially in rural areas.

The harsh reality is that there is a crisis of conscience within the legal sector. Leaving aside that very small minority that remains committed to practicing human rights and public interest law as well as being directly involved in working with and supporting community organisations and social movements, the legal profession has failed those most in need of their services. Legal academic Professor Sandy Liebenberg puts the matter succinctly: “The whole ethos is about money not about a profession that’s actually there to promote justice and be accessible for people.”

Yet even if there were additional committed and progressive lawyers, this would not deal with a more fundamental challenge. Most legal NGOs, often heavily pushed by the agenda of their funders, focus the bulk of their energies and resources on ‘strategic litigation’ to challenge and change the law, in both High Courts and the Constitutional Court. ‘Criminal cases’, largely heard in Magistrate’s courts and which have increasingly become the main interface with the legal/justice system for both activists and residents of poor and working class communities, hardly even feature. If legal NGOs are not consistently taking up cases that are of direct and immediate import and consequence to people’s lived realities, then the associated relationship with the Constitution becomes pre-determined and structured by interests other than those of the very people in need.

Possibly most problematic of all arenas in the struggle for access to justice though, is the gap between the rights promises of the Constitution and the practical application and implementation of associated and enabling law, legislation and policy. If, in practice, those laws, legislation and policies are consistently deflecting and undermining the realisation of most socio-economic and political/civil rights – despite equally consistent struggles and efforts by civil society to know, engage, change and make positive use of them – then the Constitution becomes little more than a legal abstraction at best.

The cumulative result of South Africa’s crisis of access to justice, points to the increasing potential for widespread rejection not only of the Constitution, but of the institutional and legal pillars of ‘the system’ itself. If the dominant lived experience of poor and working class people is one of endless frustration at the lack of practical assistance and effective redress in their search for justice and equality, then it is inevitable that they will question the value of the Constitution, its inclusive rights as well as all associated legislation and policies that supposedly give these rights legal and practical effect.

This brings to the surface a very uncomfortable reality for those who look to the Constitution as the foundation of and primary catalyst for, political and socio-economic transformation. Despite the adoption of a Constitution that enshrines a range of rights and lays down an institutional, democratic architecture, the ability to access justice through the resultant system largely remains a deferred dream for the very same poor and black majority that were historically excluded, oppressed and discriminated against under the Apartheid system.

Quo Vadis, South Africa? DM

This column derives from a year-long research project by the author – through the South African History Archive – on the changing relationship between civil society and the Constitution since 1994.


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