Access to justice for all : a reality or unfulfilled expectations?

• Author: Lesley Greenbaum
• Pages: 248-266
• Date: 01 June 2020
• Published date: 01 June 2020
• DOI: 10.17159/2225-7160/2020/v53a17

248 2020 De Jure Law Journal

Access to justice for all: a reality or

unfulfilled expectations?

Lesley Greenbaum

BA LLB M Ed (Natal) PhD (UKZN)

Associate Professor of Private Law, University of Cape Town

SUMMARY

While the constitutional imperatives related to access to justice, the

legislative framework of Legal Aid SA (LASA), the regulations for the

attorneys’ profession and the Legal Practice Act 28 of 2014 suggest that

citizens are adequately catered for in accessing justice, the lived reality for

poor persons is that this is not substantively attained. The formal

framework creates unfulfilled expectations. First year law students at a

Law faculty were required to report on their observations in the lower

courts and on an interview with a litigant or official at the court visited.

The focus of the assignment was on access to justice: identifying barriers

and making recommendations for enhancing access to justice. The

observations of the novice law students in the courts speak to the

experiences of indigent and middle-class persons seeking to access the

courts in largely urban areas. Ethical clearance and informed consent of

the participants was obtained in accordance with the requirements of the

Ethics Research Committee of the Law faculty. What is evident is that the

achievement of access to justice is impeded by a number of factors,

including socio-economic inequalities, systemic inefficiencies caused by

poor administration at the courts and an unmet demand for legal services.

It will require the allocation of significant financial and human resources to

overcome the obstacles preventing those who cannot afford the cost of

private legal representation from effectively accessing the legal system.

The aim of the paper is to review the position pertaining to access to

justice in the various regulatory sources and then to consider the obstacles

identified by the students related to ‘law in practice’ in the lower courts of

South Africa. Finally, the paper proposes some recommendations to

address the observed impediments to accessing justice by the poor.

1Introduction

First year law students at a South African Law faculty completed an

assignment based on their observations during visits to a district or

regional magistrates’ court. Informal interviews were also conducted

there by the students with an official or litigant about access to justice.

The court visit reports provide empirical evidence of how law in practice

unfolds in the lower courts on a daily basis. The research and

perspectives discussed are the work of student observer participants,

while the data analysis was conducted by the author. Ethical clearance

and informed consent of the participants were obtained in accordance

with the requirements of the Law faculty Research Ethics Committee.

How to cite: Greenbaum ‘Access to justice for all: a reality or unfulfilled expectations?’ 2020 De Jure Law

Journal 248-266

http://dx.doi.org/10.17159/2225-7160/2020/v53a17

Access to justice for all: a reality or unfulfilled expectations? 249

The perspective of law foregrounded in the assignment is a realistic

theory of law as propounded by Tamanaha.1 This approach adopts a

holistic view of law in its social totality, influenced by its social context.

It requires that law be understood empirically and is built on

observations about the past and present reality of law.2

Methodologically, observational participant research enables the

researcher to understand and capture the context within which people

interact.3 The student participant/researchers were able to unobtrusively

observe and collect rich data by immersing themselves in the first-hand

experience of being present in the lower courts.4 The reports were

structured around research questions which interrogated the context,

observed impediments to access to justice and elicited reflections on

proposals to enhance access to justice. A deliberately critical framing,

emphasising awareness of injustices and inequalities was adopted.

Perspectives of the less powerful and the potential for change-making

strategies were emphasised through the prescribed readings and design

of the questions.5 Data analysis by the author took the form of coding of

the observer reports, followed by thematic content analysis.6

While most students visited courts in urban areas surrounding the

university, their reports cover a wide geographical range across the

country. Observations in rural magistrates’ courts might have provided

some very different perspectives. It is likely that in rural magistrates’

courts additional challenges to access to justice such as difficulties of

physical access to courts, language barriers and higher levels of poverty,

illiteracy and lower levels of education would have had a significant

impact on the conclusions.

This paper firstly defines what is meant by access to justice, then the

current formalised frameworks for the provision of legal services for

those who cannot afford legal representation are reviewed. Thereafter,

an analysis of the observations of students during their visits to lower

courts reveals that within these frameworks created to enhance access to

justice for the poor, many substantive impediments and gaps exist. It is

argued that the current provision of legal representation for indigent

persons fails to ensure access to justice for the majority of citizens who

cannot afford the fees charged by private legal practitioners. Finally, the

paper makes some proposals and evaluates the feasibility of the

students’ recommendations to address the challenges identified during

their court visits.

1 Tamanaha A Realistic Theory of Law (2017) 2.

2 Tamanaha A Realistic Theory of Law (2017) 4.

3K DeWalt & B DeWalt Participant observation: a guide for fieldworkers

(2002).

4 Bryant “Conducting observational research” https://www.deakin.edu.au/

__data/assets/pdf_file/0004/681025/Participant-observation.pdf (accessed

2020-04-10).

5Patton Qualitative Research & Evaluation Methods (2002).

6 Krippendorff Content Analysis: An Introduction to Its Methodology (2004).