Entrenched in the South African Constitution is the right of access to justice. As the South African Human Rights Commission points out, “this means people have the right to have a matter heard before a court or an appropriate body, in public and on any matter or issue. No one is above the law, regardless of their standing in society.”

This finds parallels in the United Nations (UN) Sustainable Development Goals (SDG). In particular, SDG 16 aims to promote just, peaceful and inclusive societies through access to justice and effective governance structures for all institutions.

As the UN outlines, access to justice concerns “the ability of people to defend and enforce their rights and obtain just resolution of justiciable problems in compliance with human rights standards; if necessary, through impartial formal or informal institutions of justice and with appropriate legal support”.

According to the Organisation for Economic Cooperation and Development (OECD), effective access to justice is necessary for upholding the rule of law, regulatory effectiveness, enhancing policy design and fostering good governance. This is instrumental for tackling corruption and building trust in government.

More broadly, access to justice promotes positive policy outcomes in various areas, including gender, health, employment, and education.

Yet, in a country grappling with extreme inequality, which is widening, we are called to ask — is there really access for all? Arguments can be made that access to justice is impacted by various socioeconomic factors, including poverty, illiteracy, geographical location, and the excessive costs of accessing the often-prohibitive justice system.

Access to justice

The American abolitionist Frederick Douglass once said, “where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”

These words can be considered as a damning diagnosis of the South African condition. Mathias Nyenti argues that the concept of access for all must be expanded to empower users of the justice system by dismantling barriers that impede access. Although this is done constitutionally, it must also be achieved in practice.

As Lesley Greenbaum outlines, “the conclusion must be drawn that at present, access to legal services and thus access to justice remain an unfulfilled expectation rather than a reality for most citizens, other than an affluent minority who can afford the exorbitant costs of legal representation charged by private practitioners”.

Read more in Daily Maverick: Justice For All: Why South Africa should invest in legal technology

Appropriately, we must ask how we can address this glaring gap. Ensuring justice for all in South Africa is not merely a legal imperative, it also has implications for our societal impact. A fair and accessible justice system fosters social cohesion, trust, and stability within communities while challenging socioeconomic disparities.

Here, societal impact is determined by whether citizens feel secure, empowered, equal and part of a just and inclusive society. Through the lens of societal impact, reforms aimed at expanding access to justice can be transformative.

How, then, do we respond?

Greenbaum calls for more funding from the government for legal aid aimed at encompassing those currently excluded from the system. While access to legal representation must absolutely be enhanced through the meaningful resourcing of legal aid programmes, I would argue that this is only one intervention, and we must widen our approach.

AI in addressing reform and inequalities 

In addition to greater representation, legal reforms should aim to update frameworks, thus eliminating discriminatory laws and practices; community legal education must be established to empower individuals; alternative dispute resolution mechanisms, which offer quicker and cost-effective resolutions, must be explored; and the integration of technology can streamline processes and improve accessibility.

More widely, we must address our overarching socioeconomic inequalities. By reducing poverty and inequality, we can expand access to justice.

Here, artificial intelligence (AI) presents various possible solutions. For instance, AI language translators can alleviate language barriers in the legal system, making justice more inclusive. These tools can translate legal jargon, facilitate communication between non-English speakers and legal experts, and improve the precision of legal proceedings.

Online dispute resolution (ODR) presents an innovative approach to justice by leveraging digital capabilities for affordability, accessibility, and convenience. It addresses financial burdens, eliminates geographical restrictions, and offers agility in conflict resolution.

This requires addressing technology literacy issues, ensuring digital access, and implementing robust training and ethical frameworks to prevent further marginalisation and uphold privacy.

The complexities and high costs of legal systems often hinder equitable justice. However, AI-powered legal chatbots and virtual assistants offer hope by providing accessible legal information, aiding in tasks like form completion, and offering personalised guidance.

These tools empower users to understand legal options. Using deep learning neural networks, AI-driven predictive analytics can bring transparency and efficiency to the legal system. These tools forecast potential outcomes by analysing historical cases and data, optimising resource allocation, and informing legal policy.

These technological advancements certainly have the potential to make justice more accessible and efficient. As the American Bar Association phrases it, “AI can be used for the public good. AI offers the potential to scale solutions to reduce the justice gap”.

While the Constitution seeks to redress the ghosts of our apartheid past, this is not always an enforced ideal. Despite constitutional guarantees, barriers to access to justice persist, hindering the adequate redress of past wrongs.

The late Archbishop Desmond Tutu once said, “exclusion is never the way forward on our shared paths to freedom and justice”. For our constitutional vision to really materialise, it necessitates not only legal reforms but also a societal commitment to dismantling the barriers that impede marginalised communities’ access to justice.

Here, AI proves to be an essential tool in our arsenal.

Tutu’s words are a stark reminder that justice can only be achieved when all South Africans participate fully in the legal process and contribute to the collective journey towards real freedom. DM