The Paralegal and The Right of Access To Justice in South Africa

The Paralegal and the Right of
Access to Justice in South Africa
by
Noleen Leach neé Noble
A THESIS SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS

OF THE
Degree of Doctor Legum in the Department of Public Law and Jurisprudence at the
University of the Western Cape
Supervisor: Professor J. Mujuzi
Submitted: March 2018

KEYWORDS
Access to justice
Legal empowerment
Access to the courts
Alternative dispute resolution fora
Vulnerable communities
Community-based paralegal
Legal profession
Legal services
Legal assistance
Legal aid
ii
http://etd.uwc.ac.za/
ABSTRACT
Political settlements in post-conflict democracies such as South Africa with its accompanying
constitutional reforms have altered the relationship between citizens and the State, creating a new order
of citizen entitlement and state responsibilities resulting in different expectations about the law, judicial
systems and other dispute resolution mechanisms. The post-apartheid government in South Africa
introduced various measures to enhance access to justice for the most vulnerable communities in the
country. However, poverty, unemployment and inequality threaten South Africa’s constitutional
democracy. Lack of access to justice and its related socio-economic and health problems create a fertile
environment for disillusioned communities to take the law into their own hands with serious
consequences for the rule of law, human security, peace and stability.
Measures on the part of the State to remove the barriers to access to justice remain mainly top-down
and are predominantly focused on ‘the rule of law orthodoxy’, a classical definition of access to justice
and the private legal profession. The status quo remains in spite of the fact that the interaction of many
citizens with the law occurs mostly outside of the formal justice system. The community-based
paralegal has rendered a crucial socio-legal service without formal recognition in South Africa among
these communities since before 1994. However, the continued existence and efficacy of this service is
threatened by its exclusive reliance on donor funding and volunteerism, the lack of accredited education
and training and lack of recognition and regulation.
This thesis investigates whether the existing human rights framework creates scope for the community-
based paralegal to enhance access to justice in South Africa and, as a consequence, contribute to the
transformation of the legal profession. The focus is on section 34 of the Constitution of South Africa,
1996 which guarantees the right of access to procedural justice in civil matters. This right is rendered
meaningless without the right to legal assistance, which includes legal aid, where the interest of justice
so requires, and legal representation by a legal or a paralegal practitioner. This thesis therefore first
considers the legal empowerment paradigm as a philosophical and theoretical framework for access to
justice in South Africa; secondly, examines the values that shape the new constitutional order in the
country; thirdly, determines the nature, content, application and limitation of the right of access to courts
and other dispute resolution fora and the derivative right of access to legal assistance. It further
examines, in brief, the extent to which the courts and other dispute resolution fora create scope for
paralegal assistance and tracks the legal reforms in the legal profession with a view to determining the
scope that these reforms create for a paralegal ‘profession’. The study finally examines the community-
based paralegal landscape in South Africa and the paralegal landscape in a number of economically
developed and developing countries to establish the features that would define a paralegal profession in
the country.
iii
DECLARATION
By submitting this thesis, The Paralegal and the Right of Access to Justice in South Africa, I declare
that the entirety of the work contained therein is my own, original work, that I am the sole author thereof,
that it has not been submitted before for any degree or examination in any other university, and that all
the sources I have used or quoted have been indicated and acknowledged as complete references.
__________________________________
Noleen Leach neé Noble
Date: June 2017
iv
DEDICATION
In memoriam:
Nomboniso Nangu (1968 – 2017) whose tireless efforts for the recognition of the community-based
paralegal in South Africa inspired this thesis.
ACKNOWLEDGEMENTS
I thank the following institutions and persons:
- Carnegie Corporation of New York and the International Social Science Research Council for
the award of the Next Generation Social Sciences in Africa: Doctoral Proposal Fellowship.
- Department of Higher Education and Training and the Research Directorate of the Cape
Peninsula University of Technology for the Teaching Development Grant.
- Dullah Omar Institute and Faculty of Law at the University of the Western Cape for the
academic support.
- The facilitators, critical readers and fellows of the Next Generation Social Sciences in Africa:
Doctoral Proposal Fellowship 2015-2016 for their input and mentoring.
- National Alliance for the Development of Community Advice Offices (NADCAO)
- Association of Community-based Advice Offices of South Africa (ACAOSA)
- Prof. Mujuzi for his supervision.
- The staff at the Unit for Applied Law, Cape Peninsula University of Technology for their
unwavering support.
- Dr. V. Bosman for his critical oversight.
- L.L. Leach (Jr) and R.C.M Adams for the technical support.
- Dr. L.L. Leach (Sr) for his insights.
- K. Leach for research assistance.
- Family and friends for their support.
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TABLE OF CONTENTS
KEYWORDS ......................................................................................................................................... ii
ABSTRACT .......................................................................................................................................... iii
DECLARATION.................................................................................................................................. iv
DEDICATION....................................................................................................................................... v
ACKNOWLEDGEMENTS ................................................................................................................ vi
PART I: INTRODUCTION, RATIONALE, PHILOSOPHICAL FRAMEWORK AND

DEFINITIONS
CHAPTER 1
INTRODUCTION AND RATIONALE for THE STUDY ................................................................ 2
1.1. Introduction ............................................................................................................................. 2
1.2. Research question ................................................................................................................. 12
1.3. Research objectives ............................................................................................................... 13
1.4. Assumptions.......................................................................................................................... 14
1.5. Research methodology .......................................................................................................... 15
1.6. Significance of the study ....................................................................................................... 16
1.7. Structure of the dissertation .................................................................................................. 17
CHAPTER 2
PHILOSOPHICAL FRAMEWORK AND DEFINITIONS ........................................................... 19
2.1 Introduction ........................................................................................................................... 19
2.2 What is access to justice? ...................................................................................................... 19
Traditional schools of thought ...................................................................................... 20
Access to justice in South Africa .................................................................................. 23
2.3 What is legal empowerment? ................................................................................................ 26
2.4 Legal empowerment in South Africa .................................................................................... 31
2.5 The paralegal defined ............................................................................................................ 32
2.6 Legal services defined in South Africa ................................................................................. 36
2.7 Legal assistance defined in South Africa .............................................................................. 38
2.8 A legal services framework in South Africa ......................................................................... 41
2.8.1 Information service ............................................................................................... 43
2.8.2 Advisory service ................................................................................................... 43
2.8.3 Support service ...................................................................................................... 44
2.8.4 Representation service .......................................................................................... 44
2.9 What is legal aid? .................................................................................................................. 45
vii
2.10 What is a legal remedy? ........................................................................................................ 47
2.11 Conclusion ............................................................................................................................ 48
PART II: THE CONSTITUTIONAL VALUES THAT SUPPORT ACCESS TO JUSTICE IN

SOUTH AFRICA
CHAPTER 3
THE VALUES OF HUMAN DIGNITY, EQUALITY AND FREEDOM IN THE SOUTH
AFRICAN CONSTITUTIONAL ORDER ....................................................................................... 52
3.1. Introduction ........................................................................................................................... 52
3.2. Human dignity ...................................................................................................................... 53
3.3. Freedom ................................................................................................................................ 56
3.4. Equality ................................................................................................................................. 60
3.5. The waymarks of the constitution of the Republic of South Africa...................................... 61
The preamble................................................................................................................. 61
The founding provisions ............................................................................................... 62
Section 39...................................................................................................................... 63
Section 7........................................................................................................................ 66
Section 36...................................................................................................................... 67
3.6. Conclusion ............................................................................................................................ 69
PART III: THE SUBSTANTIVE LEGAL FRAMEWORK OF ACCESS TO PROCEDURAL

JUSTICE IN CIVIL MATTERS IN SOUTH AFRICA
CHAPTER 4
INTERNATIONAL LAW AND THE RIGHT OF ACCESS TO PROCEDURAL JUSTICE IN
CIVIL MATTERS IN SOUTH AFRICA ......................................................................................... 73
4.1. Introduction ........................................................................................................................... 73
4.2. The inter-relationship between domestic and international law............................................ 74
4.2.1. The monist-dualist dichotomy ...................................................................................... 75
4.2.2. International Human Rights Instruments ...................................................................... 77
4.2.3. The Constitution of the Republic of South Africa, 1996 .............................................. 78
4.3. Human rights treaties and the right of access to the courts and other dispute resolution fora..... 80
4.3.1. The Universal Declaration of Human Rights ................................................................ 81
4.3.2. The International Covenant on Civil and Political Rights ............................................ 82
The right of equality before courts and tribunals ...................................................... 83
Fair and public hearing ............................................................................................. 86
Competent, independent and impartial tribunal established by law.......................... 86
viii
Limitations of the right to a procedural remedy........................................................ 89
4.3.2.4.1. Specific limitation................................................................................................. 89
4.3.2.4.2. General limitation ................................................................................................. 90
4.3.2.4.3. Implied limitations ................................................................................................ 90
Initial reports of States parties due in 2000: South Africa ........................................ 91
4.3.3. The African Charter on Human and People’s Rights.................................................... 93
Fair hearing ............................................................................................................... 98
Public hearing ......................................................................................................... 100
Independent tribunal ............................................................................................... 100
Impartial tribunal..................................................................................................... 102
4.3.4. The African Commission’s concluding observations and recommendations on the First
Periodic Report of the Republic of South Africa ........................................................................ 103
4.3.5. The Second Periodic Report under the African Charter on Human and People’s Rights ..104
4.4. Conclusion .......................................................................................................................... 106
CHAPTER 5
SECTION 34 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 ....... 109
5.1. Introduction ......................................................................................................................... 109
5.2. Section 34 and key constitutional provisions ...................................................................... 109
Section 34 and arrested, detained and accused persons .............................................. 110
Section 34 and standing .............................................................................................. 111
Section 34 and customary law .................................................................................... 117
Section 34 and other leverage rights ........................................................................... 122
5.3. The nature and application of the right of access to the courts, tribunals and other dispute
resolution fora ................................................................................................................................. 124
The nature of the right ................................................................................................. 125
The bearers of the right ............................................................................................... 126
5.3.2.1. Natural persons ....................................................................................................... 126
5.3.2.2. Juristic persons ........................................................................................................ 126
Section 34 and criminal matters .................................................................................. 128
Disputes that can be resolved by the application of law ............................................. 128
5.4. The content of the right of access to the courts, tribunals and other dispute resolution fora .... 129
Access to the courts..................................................................................................... 129
Fair hearing ................................................................................................................. 131
Public hearing ............................................................................................................. 133
Another independent and impartial tribunal ............................................................... 136
5.5. Section 34 and the limitation clause (Section 36) ............................................................... 140
5.6. Conclusion .......................................................................................................................... 146
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CHAPTER 6
SECTION 34 AND THE RIGHT TO LEGAL ASSISTANCE IN CIVIL MATTERS .............. 149
6.1. Introduction ......................................................................................................................... 149
6.2. The right to legal assistance under the United Nations human rights framework .............. 153
6.3. The right to legal assistance under the regional human rights framework.......................... 158
6.4. A right to legal assistance under Section 34 of the Constitution of South Africa ............... 161
6.5. Section 34 and the right to legal representation .................................................................. 162
The right to legal representation in a court of law ...................................................... 162
The right to legal representation in another independent and impartial tribunal or
forum ........................................................................................................................... 164
The right to legal representation at the expense of the State in a court of law........ 164
The right to legal representation at the expense of the State in a quasi-judicial and
non-judicial forum .................................................................................................................. 166
Limitations to the right of legal representation at the expense of the State ................ 170
LASA’s means and merit test ................................................................................. 170
The limited resources of the state as a barrier to legal assistance ........................... 171
6.6. The right to legal assistance beyond legal representation in a court or another dispute
resolution forum .............................................................................................................................. 175
Legal empowerment and the right to legal assistance ................................................. 175
The social contract and the right to legal assistance ................................................... 180
Legal assistance and the right to equality ................................................................... 183
6.7. Conclusion .......................................................................................................................... 187
PART IV: THE INSTITUTIONS THAT SUPPORT ACCESS TO JUSTICE IN SOUTH

AFRICA
CHAPTER 7
COURTS AND OTHER DISPUTE RESOLUTION FORA ......................................................... 191
7.1. Introduction ......................................................................................................................... 191
7.2. Courts .................................................................................................................................. 191
7.3. Tribunals ............................................................................................................................. 195
7.4. State institutions supporting democracy ............................................................................. 196
7.5. Commissions of inquiry ...................................................................................................... 199
7.6. Alternative dispute resolution (ADR) mechanisms ............................................................ 200
7.7. Conclusion .......................................................................................................................... 203
PART V: THE HUMAN RESOURCES THAT SUPPORT ACCESS TO JUSTICE IN SOUTH
AFRICA
CHAPTER 8
THE LEGAL PROFESSION IN SOUTH AFRICA ...................................................................... 207
8.1. Introduction ......................................................................................................................... 207
8.2. The legal profession defined ............................................................................................... 207
8.2.1. Justice Vision 2000 ..................................................................................................... 208
8.2.2. The Legal Practice Bill 2000 ...................................................................................... 209
8.2.3. Legal Practice Bill 2002 (Task Team Proposal) ......................................................... 209
8.2.4. Legal Practice Bill 2002 (Law Society of South Africa) ............................................ 211
8.2.5. Legal Practice Bill First Working Draft 2009 ............................................................. 211
8.2.6. Legal Practice Bill 2012.............................................................................................. 212
8.2.7. The Legal Practice Act 28 of 2014 ............................................................................. 212
8.3. The transformation of the legal profession ......................................................................... 213
8.4. The rationale for the transformation of the legal profession ............................................... 217
8.4.1. A divided legal profession .......................................................................................... 217
8.4.2. Fragmented legal education and training .................................................................... 218
8.4.3. Racial and gender demographics pre - 1994 ............................................................... 221
8.4.4 Racial and gender demographics post -1994 .................................................................. 223
The uneven geographical distribution of legal services .............................................. 228
8.4.6. The cost of legal services ............................................................................................ 228
8.4.6.1. Justice Vision 2000 ................................................................................................. 230
8.4.6.2. The Legal Practice Act 2014 ................................................................................... 232
8.5. Resistance to a paralegal profession ................................................................................... 233
8.6. Conclusion .......................................................................................................................... 237
CHAPTER 9
A COMMUNITY-BASED PARALEGAL PROFESSION IN SOUTH AFRICA ...................... 240
9.1. Introduction ......................................................................................................................... 240
9.2. The community-based paralegal in South Africa................................................................ 241
The community-based paralegal in South Africa prior to 1994 .................................. 242
The community-based paralegal in South Africa post 1994 ....................................... 243
9.3. Paralegal policy reforms initiated by the State ................................................................... 244
Justice Vision 2000 ..................................................................................................... 244
Legal Practice Bill 2002 (Task Team Proposal) ......................................................... 245
The Legal Practice Bill 2002 (LSSA) ......................................................................... 246
xi
9.4. Reforms initiated by the community-based paralegal sector: the community advice office
draft bill........................................................................................................................................... 247
Governance ................................................................................................................. 248
The standardisation, accreditation and certification of the paralegal service in
South Africa ................................................................................................................................ 250
Education and training ................................................................................................ 250
The scope of practice of the community-based paralegal and the limited right of
appearance in the courts .............................................................................................................. 252
The cost of legal services ............................................................................................ 254
9.5. The paralegal profession in the United States of America .................................................. 255
Governance ................................................................................................................. 256
Regulation ................................................................................................................... 257
Certification ................................................................................................................ 257
The scope of practice and the unauthorised practice of the law (UPL) ...................... 259
9.6. The paralegal profession in England ................................................................................... 261
Governance ................................................................................................................. 262
Regulation ................................................................................................................... 263
Certification ................................................................................................................ 264
Scope of practice and reserved legal activity .............................................................. 264
9.7. The paralegal profession in Mozambique ........................................................................... 266
Governance ................................................................................................................. 267
Regulation/certification/licensure ............................................................................... 268
Scope of practice ......................................................................................................... 268
9.8. The paralegal profession in Sierra Leone............................................................................ 269
Governance ................................................................................................................. 270
Regulation ................................................................................................................... 270
Scope of practice ......................................................................................................... 271
9.9. Conclusion .......................................................................................................................... 272
PART VI: CONCLUSION
CHAPTER 10
CONCLUSIONS AND RECOMMENDATIONS .......................................................................... 276
10.1. Conclusions ......................................................................................................................... 276
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10.2. Recommendations ............................................................................................................... 280
A philosophical and theoretical paradigm for the transformation of the administration
of justice ..................................................................................................................................... 281
The substantive legal framework and institutions that support access to justice ........ 281
Legal education and training ....................................................................................... 282
Research ...................................................................................................................... 283
The paralegal profession in South Africa.................................................................... 283
BIBLIOGRAPHY ............................................................................................................................. 284

Treaties and conventions................................................................................................................. 284
Protocols ......................................................................................................................................... 285
Resolutions...................................................................................................................................... 285
Principles and Guidelines ............................................................................................................... 286
Communications of Treaty Monitoring Bodies .............................................................................. 286
Legislation....................................................................................................................................... 288
Draft Legislation ............................................................................................................................. 290
Delegated Legislation ..................................................................................................................... 290
Cases ............................................................................................................................................ 290
Books ............................................................................................................................................ 297
Chapters in Books ........................................................................................................................... 301
Theses and Working Papers ............................................................................................................ 302
Conference Papers .......................................................................................................................... 302
Reports to the United Nations General Assembly .......................................................................... 305
State Reports to the Human Rights Monitoring Bodies .................................................................. 305
Annual Reports ............................................................................................................................... 305
Journal Articles ............................................................................................................................... 305
Policy Documents ........................................................................................................................... 308
Internet Sources .............................................................................................................................. 309
Discussion Papers ........................................................................................................................... 313
South African Human Rights Commission..................................................................................... 313
Other Publications........................................................................................................................... 313
xiii
Part I
Introduction, Rationale, Philosophical Framework and Definitions
CHAPTER 1
INTRODUCTION AND RATIONALE FOR THE STUDY
1.1. INTRODUCTION
This study intends to investigate whether the existing South African human rights framework creates
scope for the community-based paralegal practitioner to improve access to procedural justice in civil
matters and, as a consequence, contribute to the transformation of the legal profession.
Access to justice has been an imperative in South Africa since before 1994. The post-apartheid
government has introduced various measures to enhance access to justice for the most vulnerable
communities. However, serious barriers to access still remain. The United Nations Development Project
(UNDP)1 identified various barriers to access to justice across the world. These include
‘long delays, severe limitations in existing remedies provided either by law or in

practice, gender bias and other barriers in the law and legal systems, lack of de facto
protection, lack of adequate legal aid systems, limited public participation in reform
programmes, excessive number of laws, formalistic and expensive legal procedures
and avoidance of the legal system due to economic reasons’.2
These findings correspond with those in the Transformation of the Legal Profession: Discussion Paper,3
in which the uneven geographical distribution of lawyers and the lack of recognition of the role played
by paralegal practitioners were identified as additional barriers. Moreover, the devastating effects of the
apartheid era continued to hamper the social and economic advancement of the majority of citizens in
the country, who, for the most part, appear to be powerless to take advantage of the progressive legal
reforms to improve their lives.
The concept ‘access to justice’ eludes universal definition, as it is subject to interpretation and highly
contextual. Economically developed countries seem to focus primarily on the classical definition, which
1
United Nations Development Programme, Access to Justice: Practice Note, (2004) p. 4.
2
United Nations Development Programme (2004).
3
Policy Unit of the Department of Justice, Transformation of the Legal Profession: Discussion Paper, (1999) South
Africa: Department of Justice.
is in essence limited to access to the courts,4 whereas in developing countries a much broader definition
is required.5 Post-apartheid South Africa has adopted a human rights based approach to access to
justice, which is defined in South Africa by its constitutional imperatives, mainly contained in the Bill
of Rights.6
The right of access to justice, in the narrow sense, is contained in section 34 of the Constitution, which
guarantees the right of access to the courts, in other words, procedural justice. However, the right of
access to the courts or other tribunals in a legally illiterate society is meaningless, especially without
the right to legal representation.
Various strategies are employed across the world to overcome the barriers to access to justice.7
Although South Africa has employed most of these strategies, serious barriers to access to justice still
remain in the country. Beqiraj and McNamara8 noted that the barriers to access to justice are societal
and cultural9, institutional10 and intersectional.11A brief examination of the existing legal, judicial,
educational and socio-economic environment in South Africa shows that the backlog in the courts is
well documented,12 alternative dispute resolution (ADR) institutions such as the National Credit
Tribunal reported that they are overwhelmed by the volumes of referrals,13 there is the continued
emphasis on criminal justice at the expense of civil justice,14 the poor literacy and numeracy skills of
LLB graduates is constantly lamented,15 and, at least, according to the Foundation for Human Rights,
4
Pinedo, MEM, 'Access to Justice as Hope in the Dark in Search for a New Concept in European Law', (2011), 1(19),
International Journal of Humanities, pp. 9–19. p. 9.
5
See the discussion on legal empowerment in Chapter 2.
6
Chapter 2 of the Constitution of the Republic of South Africa, 1996
7
These include “legal empowerment, legal information and public awareness, right to court access, legal aid, pro bono
work, public interest litigation, small claims tribunals and informal justice systems” United Nations Development
Programme 2004 United Nations Development Programme (2004) p. 7.
8
Beqiraj, J & McNamara, L, International Access to Justice: Barriers and Solutions (Bingham Centre for the Rule of
Law Report 02/2014), (2014) Tokyo, Japan: International Bar Association.
9
These barriers include literacy, education, poverty and discrimination.
10
These barriers are reflected by insufficient government resources to guarantee or facilitate access to justice,
inadequate organisational structure of justice institutions, limited legal assistance and representation and lack of
enforcement of decisions.
11
Where there is an overlap between societal and institutional barriers, for example, in the case of corruption and
lack of trust in institutional mechanisms.
12
Department of Justice and Constitutional Development, Annual Report 2013/2014 (2014) 38.
Domestic violence civil process cases that were brought forward totalled 77 615 and 3 173 were brought forward
under the criminal process. (Department of Justice and Constitutional Development, Annual Report 2013/2014 p 37.)
The number of maintenance cases that were outstanding totalled 1838. ( Department of Justice and Constitutional
Development, Annual Report 2013/2014 p 38)
The backlog of criminal cases totalled 29 480. (Department of Justice and Constitutional Development, Annual
Report 2013/2014 p 67.)
13
The number of debtors under debt review total 517008, and 41973 cases are still on the court roll. (National Credit
Regulator, Annual Report -2014/2015, (2015) p. 31.)
14
Legal Aid South Africa, South Africa Strategic Plan 2012-2017, (2012) p. 17.
15
Pickett, G, The LLB Curriculum Research Report, (2010) Advice and Monitoring Directorate of the Council on
Higher Education.
3
poverty, unemployment and inequality pose a serious threat to South Africa’s democracy, increasing
the vulnerability of the majority of people in the country.16
Measures to remove the barriers to access to justice are mainly informed by the classical definition,
which in essence means access to the courts and legal representation by a legal practitioner. Hence,
access to justice in South Africa cannot be addressed in isolation of the legal profession or its
transformation. These measures further continue to focus on the narrow legal profession, in spite of the
fact that the community-based paralegal practitioner has played a pivotal role in making access to justice
a reality for many vulnerable communities in South Africa since before 1994.17 Access to lawyers,
judges, courts and tribunals are important elements of a well-functioning justice system. However,
addressing the legal problems of everyday life as experienced by vulnerable communities requires a
much broader approach. South Africa is not immune to the malaise of many other countries, where the
legal reforms have fallen short of their expectations either due to shortcomings in their design and/or,
more importantly, problems in their implementation.18 The South African legal fraternity has
concerned itself with the law, the legal system and legal culture within the legal profession following
the country’s transition to a constitutional democracy.19 Hardly any attention was paid to society’s
interaction with and the perceptions of the law.20
The measures designed to remove the barriers to access to justice failed to address the reality that the
poor and disadvantaged conduct most of their social, economic and even political activities outside of
the formal justice system. The same reality applies to their interaction with the law. Informal norms,
practices and institutions govern the everyday life of the poor. The barriers to access to justice present,
in most cases, an insurmountable obstacle to these communities. The South African context presents
formidable challenges to a fledgling democratic government. This context is characterised by an
extensive informal economy, resulting in insecure means of support and expansive informal settlements
that are essentially disconnected from the rural economy spatially, socially, or structurally and not
completely incorporated into the urban systems. The current government seems to lack the capacity to
fully incorporate customary practices into the country’s formal legal system21 and multiple barriers to
access to justice present itself.
16
Foundation for Human Rights, “Access to Justice”, available at: http://www.fhr.org.za/programmes/access-justice/.
(accessed 5 June 2016).
17
See Chapter 9
18
Cotula, L & Mathieu, P, Legal Empowerment in Practice: Using Legal Tools to Secure Land Rights in Africa,
(2008) Accra, Ghana: IIED p. 17.
19
See the discussions on the transformation of the legal profession in Chapter 8
20
Hodgson, TF, 'Bridging the gap between people and the law: transformative constitutionalism and the right to
constitutional literacy : part II : reflections on Justice Langa’s court and philosophy', (2015), 2015(1), Acta Juridica,
pp. 189–212.
21
See the discussions in Chapters 5 and 7 on the Traditional Courts Bill [B1-2012].
4
The efforts of the current South African government to improve access to justice have to be
acknowledged. However, labour unrest remains a thorny issue,22 the poor have resorted to public mass
demonstrations as the preferred mode of communication23 and the ‘not so poor’ to class actions,24the
backlog of cases in the courts has not been eradicated,25 the gap between the rich and the poor remains
a chasm,26 legal services remain unaffordable for the majority of citizens in the country, 27 access to
legal services in the rural areas remains a challenge,28 vulnerable members of society remain illiterate29
and the paralegal is still battling for recognition as a law professional in the country. 30 In addition,
many providers of legal services are geographically and/or culturally isolated from the communities
they serve, making it difficult for these vulnerable communities to find and receive services.31
Vulnerable groups are part of the population who are subjected to discriminatory treatment, or need
special protection from a harmful environment by the State or need to be assisted to avoid exploitation.
The European Commission considers a common feature of vulnerable communities to be people who
‘experience a higher risk of poverty and social exclusion than the general population’.32 These include
persons living with disability, gay and lesbian communities, children, youth and the aged, persons who
have been historically disadvantaged as a result of their racial, cultural and linguistic background, rural
communities, persons with poor or no education, women, the economically disadvantaged and persons
living with HIV. All these categories are represented in the South African population. In most
instances, the vulnerability is compounded by the multiplicity of the disadvantage and poverty, in
particular, cuts across all categories of vulnerable communities. Poverty, therefore, presents a
formidable barrier to access to justice in South Africa and cannot be underestimated.
22
IRMSA, South Africa Risks 2015, (2015) South Africa: The Institute of Risk Management South Africa.
23
Powell DM, O’Donovan O, & De Visser J‘Civic Protests Barometer 2007-2014’( 2015) 1–14.
24
Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others 2009
(CCT12/09) ZACC 31 (CC).
Trustees for the Time Being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2012 (050/2012) ZASCA 182.
Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Ltd and Others 2013
(90/2013) ZASCA 148 (SCA).
25
Department of Justice and Constitutional Development, Annual Report 2013/2014.
26
South Africa has a Gini index of 63.1 and is ranked second among countries with the greatest inequality (World
Development Index, “Gap Between Rich and Poor: World Income Inequality”, (2013), available at:
http://www.infoplease.com/world/statistics/inequality-income-expenditure.html. (accessed 15 April 2017).
27
AfriMAP & Open Society Foundation for South Africa, South Africa: Justice Sector and the Rule of Law, (2005)
Cape Town, South Africa: Open Society Foundation for South Africa.
28
Transformation of the Legal Profession: Discussion Paper (1999).
29
Index Mundi, “South Africa Literacy - Demographics”, available at:
http://www.indexmundi.com/south_africa/literacy.html. (accessed 10 January 2017).
30
Transformation of the Legal Profession: Discussion Paper, (1999)
See Chapters 8 and 9
31
Kaman, C, Radday, A & Stanzler, C, Civil Legal Assistance - Social Issue Report, (2012) Boston: rootCAUSE.
See Chapters 8 and 9
32
European Commission, The European Social Fund and Social Inclusion: Summary Fiche, (2010) Belgium p. 5.
5
Persons living in poverty are exposed to a variety of vulnerabilities and challenges and can thus not be
regarded as a homogenous group. A range of exclusions experienced by these communities and its
cumulative effect with the resultant disempowerment, entrenches their poverty stricken state. The
Commission on Legal Empowerment of the Poor (CLEP) found that four billion people across the world
are excluded from the rule of law.33 In the Report of the United Nations Secretary-General it was noted
that poverty could be considered as both the cause and the consequence of this exclusion.34 The Report
states that almost all communities living in poverty share the same characteristics. They do not have
equal access to state institutions and services tasked with the protection and promotion of human rights,
even where those institutions exist. They are unable to voice their needs, obtain redress for violation
of their rights, participate meaningfully in public life and exercise influence over policies that will
ultimately regulate their daily lives. They lack the protection of the rights afforded by the law and their
meagre resources are not adequately protected or leveraged.
This applies equally to the South African context where the statistics on poverty levels are well
documented35 and where poverty presents a formidable barrier to access to procedural justice, in spite
of the country’s liberal Constitution and the state institutions tasked with the protection and promotion
of human rights, Regrettably, for many impoverished and disadvantaged communities the law is
inaccessible and consequently they are left disempowered and unable to make the law work for them
and improve their lives. This situation presents serious implications for the rule of law and peace and
stability in the country. Paradoxically, these communities function in the shadow of the law36 but the
shadow function of the law,37 for the most part, does not exist for them. Therefore, even in a
constitutional democracy such as South Africa with its progressive laws, citizens experience a
difference between the letter of the law and its practice, as the manner in which the law is entrenched
in the social and political order affects its potential to empower individuals and groups.38
Cotula argues that there is a reciprocal relationship between law and power which manifests in the way
it reflects and shapes power relations.39 Thus, any strategy aimed at legal empowerment of the poor
requires a ‘societal culture shaped by law and a legal culture shaped by society’.40 Law is thus the
measure by which powerful State and non-State actors can be held accountable and the poor and
33
Open Society Justice Initiative, Community-based Paralegals: A Practitioner’s Guide, (2010) New York, USA:
Open Society Institute.
34
Open Society Justice Initiative (2010).
35
Statistics South Africa, General Household Survey, (2015) .
36
The law can be wielded as a weapon against them by powerful State and non-State actors alike.
37
They often lack the capacity to make the law work for them and to invoke the protection of the law.
38
A case in point in South Africa is how the apartheid system with its extensive statutory framework, infrastructure,
institutions and human resources managed to subjugate an entire nation.
39
Cotula, L & Mathieu, P (2008) p. 16.
40
Hodgson (2015) p. 189.
6
marginalised groups can rally to effect change in practice. The conceptual framework developed by
Tuori41 includes the notion of ‘power by the law’, which refers to the manner in which the law assists
in shaping power relations through ‘legal claims that create, strengthen limit and/or legitimise power
and through legal services that enable groups and individuals to enforce those claims’.42 It also includes
‘power in the law’, which refers to the ‘power relations within the legal professions and between legal
professionals and “laymen”’.43 It further identifies ‘power on the law’ which refers to how power
relations in society influence the substance and the implementation of the law.44 These notions, as
proposed by Tuori, all have a bearing on access to justice and the paralegal. The extent to which the
substantive legal framework empowers rights-holders to enforce legitimate claims by providing a range
of legal services plays an important role in the development of these marginalised communities,
enabling them to contribute to their own development.
Law and development share both a promising and perplexing relationship. Law reform as an instrument
for promoting development45 initially focused on state law reform as a vehicle for ‘social engineering,
tackling technical issues, mobilising outside expertise and promoting “legal transplants”’.46 Inasmuch
as the ‘Law and Development movement’ generated a vast body of academic literature, its results on
the ground have been largely declared unsuccessful.47 The limitations of law reform as a singular tool
for social change is well documented and the importance of incorporating local contexts, politics and
power relations has been widely acknowledged.48
The ‘rule of law orthodoxy’49 which dominated the international legal development agenda for decades,
received wide criticism for its lack of success.50 Traditional rule of law reforms were condemned for
being top-down and were consequently state-centric, justice sector-focused and lawyer-dominated.51
Although there appears to be consensus in theory that without the rule of law there can be no sustainable
41
Tuori, K, 'Law, Power, and Critique' in Tuori, K, Bankowski, Z & Uusitalo, J (eds) Law and Power: Critical and
Socio-Legal Essays, Legal Semiotics Monographs (1997) Liverpool, UK: Deborah Charles Publications. quoted in
Cotula L & Mathieu P (2008).
42
Tuori, K (1997) p. 16.
43
Tuori, K (1997).
44
Tuori, K (1997).
45
The so-called ‘Law and Development movement’.
46
Cotula, L & Mathieu, P (2008).
47
Golub, S, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative, (2003), Rule of Law Series
Washington D.C., USA: Carnegie Endowment for International Peace.
48
Cotula, L & Mathieu, P (2008) p. 17.
49
The ‘rule of law orthodoxy’ refers to ‘a set of ideas, activities and strategies geared towards bringing about the rule
of law, often as a means towards ends such as economic growth, good governance, and poverty alleviation’ Golub, S
(2003) p. 7.
50
Barendrecht JM & de Langen M ‘Legal Empowerment of the Poor: Innovating Access to Justice’, in The State of
Access: Success and Failure of Democracies to Create Equal Opportunities ( 2008) 250–71.
51
Golub, S (2003).
7
economic growth,52 establishing such a definitive relationship in practice is challenged by anomalies.53
It is argued that the rule of law may promote economic growth but the growth may not be equitable.54
Thus, without the legal empowerment of the disadvantaged, the rule of law may very well serve to
entrench the dominance of the elites.
In South Africa, in particular, the Constitution55 envisions not only a body of law and a legal system
based on human rights and constitutionalism, but a ‘society based on democratic values, social justice
and fundamental human rights’.56 The development of such a society requires, at the very least, its
citizens to have a threshold comprehension of the law in order to comply with it and claim its protection
so that the justice gap is reduced. The effects of ignorance of the law is highlighted by Dunlap when
she concludes that it, ‘robs [the law] of its deterrent effect, deprives those whose rights have been
violated of recourse and undermines democracy’.57 The narrow legal profession and the justice sector
can therefore not be the only engineers and custodians of legal knowledge, procedures and practice.
Dunlap argues that one of the reasons for the existence of the justice gap is the vested interest of the
private legal profession to maintain a legal system that is ‘intimidating in its complexity’.58 A human
rights-based approach to access to justice requires that a culture of transformative constitutionalism
permeates legal institutions as well as society.
Access to justice is a key component of legal empowerment, which has become an important element
of the international developmental agenda since the turn of the millennium.59 Legal empowerment
signalled a shift beyond the ‘supply and demand’ approach to access to justice and has its origins in a
‘human rights based approach to development, which recognises that poverty results from
disempowerment, exclusion and discrimination’.60 Legal empowerment is ’a process of systemic
change’61 which has as its focus the protection and empowering of the poor, enabling them to promote
52
Ramanujam, N & Anstis, S, 'Legal Empowerment , Social Movements and Fostering Equitable Economic
Development in Cambodia', (2013), 2(1), Canadian Journal of Poverty Law, pp. 104–139. p. 107.
53
Some countries experience significant economic growth in spite of scoring middle to low rankings on the World
Justice Project Rule of Law Index, for example Brazil, China, Russia, India, Sierra Leone & Nigeria. (Ramanujam, N
& Anstis, S (2013).).
54
Ramanujam, N & Anstis, S (2013) p. 114.
55
Constitution of the Republic of South Africa, of 1996.
56
Hodgson, TF (2015).
57
Dunlap, B, 'Anyone Can “Think Like a Lawyer”: How the Lawyers’ Monopoly on Legal Understanding
Undermines Democracy and the Rule of Law in the United States', (2014), 82(6), Fordham Law Review, pp. 2817–
2842. p. 2817.
58
Dunlap, B (2014).
59
McInerney, T & Golub, S, Legal Empowerment: Practitioners’ Perspectives, (2010) Rome, Italy: International
Development Law Organisation.
60
UN General Assembly, Legal Empowerment of the poor and eradication of poverty: report of the Secretary
General, (2009) A/64/133 United Nations p. 2.
61
Report of the Secretary General (2009) A/64/133.
8
and enforce their rights and interests not only as citizens but also as economic actors. The Report of
the Secretary-General to the United Nations62 states unequivocally that legal empowerment that is
focused on livelihood security has the capacity to deliver the ‘freedom from want’ as well as the
‘freedom from fear’.63 The International Development Law Organization (IDLO) has shifted its focus
to legal empowerment programmes that combine a robust economic focus with efforts to enhance the
capacity of communities to apply the law to claim and enforce their rights, particularly in areas such as
health, education and freedom from gender discrimination.64 This shift in focus introduced a more
expansive approach to legal empowerment aimed at optimising the potential of the law to improve the
lives of the poor and disadvantaged populations and is of particular relevance to South Africa, as sub-
Saharan Africa is set not to meet any of its Millennium Development Goals.65 These goals have now
been converted into Sustainable Development Goals that include access to justice.66
None of the barriers to access to justice operate in isolation from each other. They are interrelated and
interact with multiple reciprocal effects. Hence, no single strategy will be sufficient to overcome these
barriers. It is therefore crucial to explore a multi-pronged and multi-level approach to legal
empowerment. Moreover, the right to legal assistance, especially in developing countries, is pivotal to
the right of access to procedural justice which is one of the leverage rights that citizens can employ to
enforce their rights. A key role player in legal empowerment, nationally and internationally, is the
paralegal. Whether recognised as a law professional or not, the paralegal practitioner has carved out a
niche in legal systems across the world. The paralegal is to be found in economically developed
countries such as the Netherlands,67 the United States of America,68 the United Kingdom69 and Canada70
and has a played an important role in ensuring access to justice in economically developing countries
such as Indonesia71 and the Philippines,72 and across the African continent, including Malawi73
62
63
Report of the Secretary General (2009) A/64/133. p 3.
64
McInerney, T & Golub, S 2010 McInerney, T & Golub, S (2010).
65
United Nations, The Millennium Development Goals, 978-92-1-101320-7, (2015).
66
United Nation Development Programme, Sustainable Development Goals, 10.1017/CBO9781107415324.004,
(2015).
67
Open Society Justice Initiative, Community-Based Paralegals: A Practitioner ’S Guide (2010), p. 7.
68
69
70
The Law Society of Upper Canada, Report to the Attorney General of Ontario Pursuant to Section 63.1 of the Law
Society Act, (2012) Toronto, Canada.
71
72
73
9
Mozambique74 and Sierra Leone.75 It has often been argued that the community-based paralegal, who
features prominently in developing countries, can
‘focus on the justice needs of an entire community, not just the client who hires them,
they can often resolve issues much faster than lawyers and judges can, entry barriers
are low, it is much easier and less expensive to train and deploy paralegals than lawyers,
paralegals are low cost compared to lawyers, they often know the community they
serve and its needs better than a lawyer would’.76
In South Africa, the community-based paralegal has rendered a vital service to vulnerable communities
for decades yet it has received little attention during the final stages of the legal reforms in the legal
profession.77 Three factors threaten the sustainability of this service, namely, the exclusive
dependability on external donor funding, the dependence on volunteerism and the lack of recognition
and regulation of the paralegal within the legal system.78 Donor funding aimed at assisting governments
to meet their obligations towards their most vulnerable citizens is intended as a temporary measure that
enables governments to find more sustainable ways of meeting their obligations towards their citizens.
Once donor fatigue sets in or donor funds are directed to more critical projects, as perceived by them,
the sustainability of this service is seriously under threat.
Lack of access to justice and consequent related socio-economic and health problems79 create a fertile
environment for already disillusioned communities to take the law into their own hands and embark on
‘self-help practices’ with serious consequences for peace and security. Vigilantism80 is one of the ways
in which communities take the law into their own hands. It has been a feature of South African society
since before 1994 and continues to surface in contemporary South Africa.81 Moreover, the lack of
74
Tanner, C & Bicchieri, M, When the law is not enough: Paralegals and natural resource governance in
Mozambique, (2014) Rome, Italy: Food and Agriculture Organization of the United Nations.
75
76
77
See Chapters 8 and 9.
78
The Law & Development Partnership Ltd, Developing a portfolio of financially sustainable, scalable, basic legal
service models: Final Report, (2015) London, UK.
79
Currie, A, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems
Experienced by Canadians, (2009) Department of Justice Canada.
80
It is described as ‘the assumption of responsibility for community safety and values by self-appointed custodians
prepared to use lethal force’(Häefele, B, Vigilantism in the Western Cape, (2006) Cape Town, South Africa:
Department of Community Safety - Provincial Government of the Western Cape p. 1.).
81
Häefele, B (2006).
Department of Community Safety, Recent Trends and Patterns of Vigilantism in the Western Cape, (2013) .
Madienyane, D, The Effects of Vigilantism on the Community of Diepsloot, University of Witwatersrand, 2013) 71.
Buur L and Jensen S ‘Introduction: Vigilantism and the Policing of Everyday Life in South Africa’ African Studies
63.2 (2004) 139–52.
10
formal recognition of the paralegal in general but the community-based paralegal in particular, denies
them legal status among the legal fraternity and the failure to regulate the sector leaves already
vulnerable communities open to exploitation. These factors, among others, constrain the potential of
the paralegal to contribute to broader societal change.
The importance of the role of the paralegal practitioner in South Africa was evidenced by its inclusion
in the Legal Practice Bill 2000. The drafters reached consensus at the time that both legal and paralegal
practitioners should be regulated in terms of one statute and that there should be one statutory regulatory
body. Chapter 4 of the Legal Practice Bill 200982 contains provisions related to the rendering of services
by paralegals and the establishment, constitution and functioning of a Paralegal Committee. However,
when the Legal Practice Bill 201283 was introduced in parliament, Chapter 4 was completely removed.
The reasons for this action are unclear but the Director-General of the Department of Justice and
Constitutional Development first suggested that the main reason was funding for the project and
subsequently indicated that the Legal Practice Act itself was the obstacle.84
Section 34(9)(b) of the Legal Practice Act85 merely mandates the Legal Practice Council to investigate
the matter. The section stipulates that:
‘The Council must, within two years after the commencement of Chapter 2 of this Act,
investigate and make recommendations to the Minister on the statutory recognition of
paralegals, taking into account best international practices, the public interest and the
interests of the legal profession, with the view to legislative and other interventions in
order to improve access to the legal profession and access to justice generally.’
The lofty ideals for paralegals contained in the Draft Strategic Plan for Transformation and
Rationalisation of the Administration of Justice (Justice Vision 2000) have been reduced to one single
sentence.86 The paralegal remained unregulated and the future of the paralegal remained uncertain.
Buur, L, 'Democracy and its Discontents: Vigilantism, Sovereignty and Human Rights in South Africa', (2008),
35(118), Review of African Political Economy, pp. 571–584.
82
Legal Practice Bill: First Working Draft 2009.
83
Legal Practice Bill 2012 [B20B-2012].
84
Parliamentary Portfolio Committee on Justice and Constitutional Development, Committee Meeting on Justice and
Constitutional Development on 2nd and 3rd Quarter Performance Date (2016).
85
Legal Practice Act, 28 of 2014.
86
Justice Vision 2000: Draft Strategic Plan for the Transformation and Rationalization of the Administration of
Justice, (2000).
11
During the consultations on the Legal Practice Act, the Parliamentary Committee on the Department of
Justice and Constitutional Development indicated that insufficient research has been done to inform
policy makers with regard to the particular niche that the paralegal is to occupy within the South African
legal landscape.87
During the drafting of the Legal Practice Act, it was acknowledged that no baseline survey had been
done on the characteristics of advice offices88 and community-based paralegals,89who constitute the
bulk of the paralegal sector, and that more empirical research has to be done to inform policy. 90
However, the community-based paralegal represents only one, yet very important, component of the
paralegal sector. Very few submissions were made by those who advocated for its inclusion as part of
the ‘narrow’ legal profession.91 Given the fact that the Legal Practice Act took14 years to be enacted,
the quest for the professionalisation of the paralegal sector has, at best, been temporarily delayed or, at
worst, stalled indefinitely.
1.2. RESEARCH QUESTION
The question that is raised in this thesis is whether, under the current human rights framework, the
paralegal has a role to play in improving access to justice in contemporary South Africa, considering
its fragmented nature and bearing in mind that the concept itself defies definition within the South
African context and lacks universal definition. The focus is on the community-based paralegals as these
practitioners are more prevalent in the country and most closely associated with access to justice for
vulnerable communities. Hence, the following research question is posed: Does the existing human
rights framework create scope for the community-based paralegal to improve access to procedural
justice in civil matters in contemporary South Africa?
87
Parliamentary Portfolio Committee on Justice and Constitutional Development, Legal Practice Bill: NADCAO &
National Task Team on community based paralegals submissions; Committee report on the Department of Justice and
Constitutional Development Strategic Plan 2013, (2013) .
88
These definitions clause of the Community Advice Office Draft Bill describes these as ‘…community-based
organisations that are governed and mandated by their community. Community Advice Offices house Community-
Based Paralegals and provide primary legal information, empowerment, advice and social justice services to people
who are not familiar or do not understand their legal and constitutional rights and who do not have access to legal
practitioners due to their indigence and/or to their social circumstances at no cost to persons who cannot afford to pay
for such, in terms of this Act.’ (Community Advice Office Draft Bill, of 2016.).
89
The definitions clause of the Community Advice Office Draft Bill describes community-based paralegals as
‘persons who provide primary legal services free of charge to indigent persons who cannot afford to pay for such and
who are qualified as such under this Act’.(National Alliance for the Development of Community Advice Offices
(2016).)
90
Parliamentary Portfolio Committee on Justice and Constitutional Development 2013 Parliamentary Portfolio
Committee on Justice and Constitutional Development (2013) p. 5.
91
Hawkey, K, 'Written submissions on the Legal Practice Bill', (2013), April (529), De Rebus, pp. 38–48.
12
Access to justice is measured by the knowledge, values and attitudes that are conducive to ensuring
access, the substantive legal framework that codifies it and the institutions, infrastructure and human
resources that support that access.92 These factors are informed by and should be aligned to a
philosophical and theoretical paradigm adopted by the nation. The research question is therefore
addressed by posing the following sub questions:
(i) What are the constitutional values that shape access to justice in contemporary South
Africa?
(ii) What is the philosophical and theoretical paradigm that informs access to justice and, as a
consequence, the role of the paralegal in contemporary South Africa?
(iii) What are the institutions and human resources that support access to justice and what scope
do these institutions create for the paralegal in South Africa?
(iv) What is the substantive human rights framework of access to procedural justice in civil
matters?
- Does this framework create scope for the community-based paralegal to improve
access to procedural justice in civil matters?
- If it does, what is that scope?
- If it does not, how should this framework be reformed to create that scope?
1.3. RESEARCH OBJECTIVES
This study intends to investigate whether the existing South African human rights framework creates
scope for the paralegal to improve access to justice in civil matters. It would therefore endeavour to:
(i) Examine the constitutional values that animate the new democratic order in the country;
(ii) Examine the legal empowerment paradigm as a conceptual framework for access to justice in
South Africa;
(iii) Review the substantive human rights framework of access to procedural justice in civil
matters by
a) Analysing the relevant provisions of the international and regional human rights
instruments, in particular the Universal Declaration of Human Rights,93 the International
92
UNDP Justice System Programme, Access to Justice – Concept Note for Half Day General Discussion, (2011) p. 3.
93
United Nations General Assembly, Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810
at 71.
13
Covenant on Civil and Political Rights94 and the African Charter on Human and People’s
Rights;95
b) Analysing section 34 and related provisions of the Constitution of the Republic of South
Africa96 with a view to establishing the nature, content and scope of the right of access to
the courts and other dispute resolution fora; and
c) Examining the right to legal assistance in civil matters as derived from section 34 of the
Constitution.
(iv) Review the institutions created by Chapter 8 and 9 of the Constitution of South Africa in brief
with a view to determining the scope for paralegal representation in these fora;
(v) Review the legal reforms in the legal profession in post-apartheid South Africa (commencing
with Justice Vision 2000 and culminating in the Legal Practice Act 28 of 2014) by examining
the rationale for the reforms and identifying the shortcomings of the reforms with regards to
the paralegal ‘profession’;
(vi) Examine the community-based paralegal landscape in South Africa and identify the features of
this practice.
(vii) Evaluate the paralegal ‘profession’ in a selection of common law and mixed legal systems
where the paralegal features prominently, against the conventional features of a legal
profession. The common law legal systems include the United States of America and England
and mixed legal systems on the African continent include Mozambique and Sierra Leone;
(viii) Draw conclusions and make recommendations.
1.4. ASSUMPTIONS
This study assumes, first, that the Legal Practice Act falls short in ensuring access to justice in so far as
it relates to the rendering of civil legal services to vulnerable communities and the transformation of
the legal profession. Secondly, it assumes that the community-based paralegal in South Africa is part
of an undefined, unregulated professional group, who generally lacks formal legal education but whose
existence is fundamental to meeting the needs for primary legal services in South Africa. Thirdly, it
assumes that the failure to formally recognise the paralegal sector in general and the community-based
paralegal in particular, contributes to the limitation of the right to access to justice in South Africa. It
therefore advances the argument that the formal recognition of the community-based paralegal can
contribute to improving access to justice and transforming the legal profession.
94
The United Nations General Assembly, International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, 999 U.N.T.S. 171 (1966).
95
Organization Of African Unity (OAU), African Charter on Human and Peoples’ Rights., CAB/LEG/67/3 rev. 5, 21
I.L.M. 58 (1982).
96
Constitution of the Republic of South Africa, 1996.
14
1.5. RESEARCH METHODOLOGY
This investigation encompasses an exploratory study comprising a synthesising literature review, legal
historical method and legal comparative method.97 The purpose of the synthesising literature review is
first, to examine the legal empowerment paradigm as a philosophical framework for access to justice in
South Africa; secondly, examine the values that shape the new constitutional order in the country;
thirdly, determine the nature, content, application and limitation of the right of access to procedural
justice in civil matters contained in section 34 of the Constitution of South Africa as reflected in
legislation, legal opinion, case law and other relevant literature; and fourthly, to determine the right to
legal assistance in civil matters as derived from section 34.
The legal historical method will be used to track the legal reforms in the legal profession leading up to
the enactment of the Legal Practice Act with a view to establishing the shortcomings for the
transformation of the legal profession and access to justice. This method will also be used to scope the
community-based paralegal landscape in South Africa and the contribution of this paralegal to access
to justice for vulnerable communities in the country.
The legal comparative method will be used to examine the paralegal ‘profession’ in a selection of
foreign legal systems where the paralegal features prominently. The common features under
consideration are, scope of practice, governance, regulation, certification and education and training.
The focus will be on a selection of countries on opposite ends of the economic divide where the
paralegal features prominently. The countries include economically developed countries, in particular,
the United States of America and England, which have their foundation in a common law legal system,
and economically developing countries, in this instance, Mozambique, Malawi and Sierra Leone,
representing a mixed legal system.
The findings will inform the conclusions that will be drawn with regards to the shortcomings in the
legal reforms to date and the recommendations for a paralegal ‘profession’.
97
Du Plessis, W, A self help guide: Research methodology and dissertation writing, (2007) Potchefstroom, South
Africa: North-West University.
15
1.6. SIGNIFICANCE OF THE STUDY
Conceptual benchmark: Various pieces of legislation have been enacted that have a bearing on access
to justice. However, lack of conceptual clarity on key terms remains a challenge. This study endeavours
to provide a basic benchmark for these key terms.
Policy reform: The Hansard record suggests that insufficient research has been done to inform policy
makers with regards to the particular niche that the paralegal is to occupy within the SA legal landscape.
This may explain the paucity of references to these practitioners in the Legal Practice Act. This study
endeavours to contribute to addressing that shortage.
Education: The Council on Higher Education in South Africa (CHE)98 has conducted a national review
of the Bachelor of Laws (LLB) degree, which is the law degree for access to the legal profession in
South Africa. It placed four universities on notice of withdrawal of accreditation and granted all other
universities in the country conditional re-accreditation only.99 This study endeavours to inform
curriculum design in the legal sciences in higher education.
Socio-economic impact: This consideration of proposals contained in the study and its inclusion in
policy could have socio-economic impact in the form of access to justice and job creation in the form
of an expansion of a different layer of law practitioners that will meet the dire needs of vulnerable
communities.
Research: Applied and multi-disciplinary research in the legal sciences in the country is, for the most
part, not regarded as mainstream research. The legal empowerment of the poor involves politics,
economics and law. Scientific evidence influences policy making and the absence thereof could stall
crucial legislation. This study endeavours to encourage multi-disciplinary research.
98
The Council on Higher Education (CHE) is an independent statutory body established in terms of the Higher
Education Act 101 of 1997, as amended. It functions as the Quality Council for Higher Education in terms of the
National Qualifications Framework Act 67 of 2008.
99
Council on Higher Education, Outcomes of the National Review of the Bachelor of Laws (LLB) qualification, (2017)
Technopark, South Africa: CHE.
16
1.7. STRUCTURE OF THE DISSERTATION
The direct link between the services of the community-based paralegal and access to justice is
recognised internationally.100 The right of access to procedural justice, in particular, is meaningless
without the right to legal assistance, which under certain circumstances the State must provide at its
own expense. The right of access to procedural justice in civil matters is measured by the substantive
legal framework that codifies it, the institutions, human resources and infrastructure that support it and
the knowledge, values and attitudes that are conducive to ensuring access. These values, institutions,
human resources and substantive legal framework are the themes that inform the scope, nature and
content of this investigation and determine the structure of this thesis.
Part I provides the introduction to the study. It contains two chapters.
Chapter 1 contains the introduction and rationale for the study. It addressed, in particular, the research
question, research objectives and research methodology.
Chapter 2 examines the philosophical framework for access to justice in South Africa and addresses a
number of definitional issues. It therefore addresses the theoretical foundations of the concept ‘justice’,
examines the legal empowerment paradigm and settles a number of definitional issues for the purpose
of this investigation.
Part II focuses on the constitutional values that support access to justice in South Africa. It contains
Chapter 3, in which the triumvirate of constitutional values, namely, human dignity, equality and
freedom are examined.
Part III addresses the substantive human rights framework of access to procedural justice in civil matters
in South Africa. It contains Chapters 4, 5 and 6.
Chapter 4 examines the international and regional human rights framework of the right of access to
procedural justice in civil matters. The focus is on key provisions of the relevant international
instruments, in particular, the Universal Declaration of Human Rights, International Covenant on Civil
and Political Rights and the African Charter on Human and Peoples’ Rights.
100
17
Chapter 5 examines the nature, application, content and limitations of section 34 of the Constitution of
South Africa and the key constitutional provisions most closely related to it.
Chapter 6 examines the right to legal assistance in civil matters as derived from section 34 of the
Constitution of South Africa.
Part IV focuses on the institutions that support access to justice. It contains Chapter 7, which examines,
in brief, the extent to which the legal framework of the courts and other dispute resolution fora create
scope for paralegal representation. It also examines, in brief, the State institutions supporting
constitutional democracy established in terms of Chapter 9 of the Constitution of South Africa with a
view to determining the role of the community-based paralegal in ensuring greater access to these
institutions.
Part V addresses the theme of the human resources that support access to justice with the focus on the
legal and paralegal professions. It contains Chapters 8 and 9.
Chapter 8 tracks the legal reforms in the legal profession in post-apartheid South Africa and its
implications for a paralegal ‘profession’. It commences with the Justice Vision 2000 and culminates in
the Legal Practice Act, 2014.
Chapter 9 focuses on the evolution of the community-based paralegal in South Africa. It briefly
examines the paralegal landscape in a number of foreign legal systems where the paralegal features
prominently for the purpose of determining the features that characterise this practice. These include
economically more advanced countries such as the United States of America and England, who are
considered to have a common law legal system. The economically less advanced countries on the
African continent with a mixed legal system include Mozambique and Sierra Leone. The purpose of
this examination is to make recommendations for a paralegal profession.
Part VI consists of Chapter 10 which contains the conclusions and recommendations.
18
CHAPTER 2
PHILOSOPHICAL FRAMEWORK AND DEFINITIONS
2.1 INTRODUCTION
The literature involving the paralegal in general and the related case law in South Africa are extremely
limited.101 Throughout the literature the relationship between the community-based paralegal and
access to justice for the marginalised and the poor is emphasised.102 However, justice is a nebulous
concept and requires clarification, especially in a country where the vast inequalities in society ensure
that deep divisions persist. The multiple barriers to access to justice for vulnerable communities require
systematic identification and removal of the barriers to access to justice. This would assist in
empowering these communities to influence, access and utilize the mechanisms and institutions that are
designed to improve their lives. This requires legal empowerment. A review of the literature in this
chapter will address the concept ‘justice’ and examine ‘legal empowerment’ as a philosophical and
theoretical framework for access to justice in South Africa.
Moreover, the literature, in some instances, does not generate universally accepted definitions of key
concepts related to access to justice or these concepts are not defined within the South African context.
A number of these definitional issues are addressed in this chapter. The relevant concepts are,
‘paralegal’, ‘legal services’, ‘legal aid’ and ‘legal remedy’. Associated concepts relevant to the study
such as ‘legal profession’ and ‘legal assistance’ are addressed in subsequent chapters.
2.2 WHAT IS ACCESS TO JUSTICE?
No discourse on the right of access to justice is complete without addressing the concept ‘justice’, which
in itself defies universal definition, as the consideration of the philosophical underpinnings of the
concept demonstrates. The focus on etymology and dictionary definitions inevitably seems to lead to a
debate on the distinction between law and morality and often lead to circular reasoning. Justice is
101
A search on the Southern African Legal Information Institute (SAFLII) shows:
38 cases that contain reference to the paralegal of which 12 relate to labour matters.
25 documents that make reference to a limited extent to the paralegal in South Africa.
Southern African Legal Information Institute, “SAFLII Search | SAFLII”, available at: http://www.saflii.org/cgi-
bin/sinosrch-adw.cgi?query= paralegal;method=auto;results=50;meta=%2Fsaflii;mask_path=&offset=50. (accessed
18 March 2017)
However, none of these documents hold particular relevance for the purpose of this study.
See Chapter 9.
102
See Chapter 9.
19
described as ‘equity’. Equity is described as ‘fairness’ which, in turn, is described as ‘justice’.103
However, addressing the concept ‘justice’ here is not aimed at bringing clarity and certainty to the
construct but to align this study to a functional definition and set the context within which justice will
be considered.
Traditional schools of thought
Western philosophy on the subject, embodied in theories of Ancient Rome and Greece, enunciated by
Cicero, Aristotle and Plato, medieval Christianity expressed by Augustine and Aquinas, early modernist
such as Hobbes and Hume, recent modernists as per Kant and Mill and contemporary theorists
represented by Rawls and his successors, provide an impressive body of knowledge. 104 A
comprehensive discussion of the various schools of thought would not only divert the focus of this
dissertation but will not reduce it to a singular, universally acceptable concept. Therefore, this study
will make brief mention of the main schools of thought and clarifying the context within which this
study will view the construct.
Traditionally, two schools of thought dominated theories of justice, namely, the naturalist and the
positivist school. Volumes have been written on the distinction between the two paradigms, which has
been regarded as the primary debate in jurisprudence.105 However, determining what truly
distinguishes one from the other is proving to be more of a challenge than initially anticipated. The
debate on the concept ‘justice’ has been approached throughout history from two perspectives, namely,
as ‘a supra-mundane eternal verity external to man’106 and ‘a temporal man-made social ideal’.
The first is associated with the traditional natural law theorists who advanced the notion that there is a
‘higher law’ (natural law, constituting natural justice) which sets the standard against which positive
law (man-made law, constituting legal justice) is measured. 107 As a result, they argued, positive law
should be consistent with natural law. This view is captured by the maxim ‘lex iniusta non est lex’,
103
‘the quality of being just; righteousness, equitableness, or moral rightness’ … ‘to act fairly’ (Farlex, ‘The Free
Dictionary’, Dictionary, 2003 available at http://www.thefreedictionary.com/ (accessed 5 June 2015).
‘fairness in the way people are dealt with’. Cambridge University Press, “Cambridge English Dictionary”, (2013),
available at: Cambridge Dictionary http://dictionary.cambridge.org/dictionary/business-english/.
104
Pomerleau, WP, 'Western Theories of Justice' (2013) Internet Encyclopedia of Philosophy, available at:
http://www.iep.utm.edu/justwest/. (accessed 5 August 2015)
105
Priel D ‘Towards Classical Legal Positivism’ Comparative Research in Law & Political Economy 20/2011 (2011).
106
Hosten WJ and others Introduction to South Africa Law and Legal Theory 2ed (1995) 23.
107
Cicero for example, considered living by natural law as justice and thus justice is derived from nature. (Rudd, N,
Cicero: The Republic and The Laws, (1998), Powell, JG (ed.) New York, USA: Oxford University Press.)
Aquinas held that a just law is one that is consistent with the requirements of natural law (Finnis, J, “Aquinas’
Moral, Political, and Legal Philosophy”, (2014), available at: The Standford Encyclopedia of Philosophy
https://plato.stanford.edu/archives/sum2014/entries/aquinas-moral-political/#Bib.). (accessed 5 August 2015)
20
meaning, an ‘unjust law is not a true law’, commonly attributed to Saint Augustine.108 Traditional
natural law theorists, thus, acknowledge the dual nature of positive law and accept that law can be
deemed both as a ‘sheer social fact of power and practice’ (conventional device) and as ‘a set of reasons
for action that can be and often are sound as reasons and therefore normative for reasonable people
addressed by them’ (supramundane verity external to man).109 No clear distinction is therefore drawn
between law and justice. Having said this, it has to be noted that there is by no means consensus among
natural law theorists as to the origin of this ‘higher law’, which points to the complexity of the paradigm
that this rudimentary synopsis conceals. 110
The second approach is consistent with the positivist approach, the proponents of which in essence
regard law as ‘man-made’.111 Proponents of this paradigm argue that social facts, and not merit,
determine the very existence and content of law, thus arguing for its separation from concepts such as
ethics and morality, which includes justice. The positivist paradigm does not claim that the merits of
law are incomprehensible, insignificant, or peripheral to the philosophy of law.112 To the contrary, their
key position is that the merits of law do not determine whether the laws or legal systems exist, thus the
need to distinguish a legal rule from a just rule.113
Traditional natural law theorists recognised the existence of unjust laws, which means that they
acknowledged that there are instances where law and justice diverge, not ought to diverge, which is a
position that some positivists mistakenly attribute to them.114 It is not difficult to recognise the
essentially identical nature of the maxim lex iniusta non est lex (which captures the naturalist position)
and Hart's ‘positivist’ exposition: ‘This is law but too iniquitous to be applied or obeyed’.115 The mere
fact that a law suffers from a deficiency in justice, strips it of its authority, since justice is the very
purpose of the existence of and obedience to the law. 116 This having been said, it is clear, in the author’s
108
Marmor, Andrei; Sarch, A, “The Nature of Law”, (2015), available at: The Standford Encyclopedia of Philosophy
https://plato.stanford.edu/archives/fall2015/entries/lawphil-nature/. (accessed 21 January 2016)
109
Finnis, J, 'Natural law theories' in Zalta, EN (ed) The Standford Encyclopedia of Philosophy , Winter 2015 ed
(2015) Metaphysics Research Lab, Stanford University.
110
It is unclear from the works of the classic writers whether this ‘natural law’ is derived from human nature or,
because it is accessible by our natural faculties or, because it is expressed by nature or, a combination of all three.
Early Christian writers added another dimension to it, suggesting that it is derived from divine command and at times
referring to the rules of nature as an expression of divine will.
111
Coleman, J & Leiter, B, 'Legal Positivism' in Patterson, D (ed) A Companion to the Philosophy of Law and Legal
Theory, 2d ed (2010) Singapore: Blackwell Publishing Ltd.
112
Green, L, “Legal Positivism”, (2009), available at: The Standford Encyclopedia of Philosophy
https://plato.stanford.edu/archives/fall2009/entries/legal-positivism/. (accessed 5 August 2015)
113
Hart, HLA, 'Positivism and the Separation of Law and Morals', (1958), 71(4), Harvard Law Review, pp. 593–629.
Bentham argues for a utilitarian approach to morality and law, defining utility as whatever promotes pleasure and
prevents pain.
114
Priel, D 2011 Priel, D (2011).
115
Hart, HLA, The Concept of Law, 2d ed, (1994) Oxford, UK: Clarendon Press p. 208.
116
Finnis, J (2015).
21
view, that there is consensus between the two paradigms. However, as Priel concluded, paradoxically,
‘there is a lingering feeling that despite seemingly in agreement on everything, the two sides could not
be further apart’.117
The two schools of thought ultimately traverse, both in theory and in practice, especially through the
codification, interpretation and application of human rights instruments. Natural law theory has
influenced, at least in part, arguments on ‘natural rights’, which ultimately evolved into human rights.118
Two ideas that are central to natural law theory, namely, that of a universal order governing all men and
the immutable rights of the individual, form an integral part of human rights law. Finis119 noted that
human rights law contains elements that are both positive120 and natural.121 The natural law notion of
the existence of minimum standards for the well-being of all human beings that accrue to them simply
by virtue of them being human (‘higher law’ or ‘ius cogens erga omnes’), is central to human rights
law. The instruments that are designed to give recognition and effect to these minimum standards (‘ius
gentium’) fall within the domain of positive law. Needless to say, if there are fundamental human
rights that are derived from natural law and these require a legal system established through the
enactment of positive law to ensure its observance, the mutually exclusive character of the two
paradigms is unclear. The distinction between the two, for the purpose of this study, has then become
irrelevant.
The challenge in attempting to deconstruct the concept ‘justice’ is demonstrated by the founder of
deconstruction, postmodern philosopher, Jacques Derrida,122 whose view of justice is summarised as
the ‘un-deconstructable reality that guided all deconstruction’.123 In a review of a compilation of some
of his works,124 Litowitz,125 in a self-proclaimed moderate positivist stance on Derrida, posits that the
philosopher describes justice
‘in vague, reverential, openly messianic terms as some kind of impossible, incalculable,
unrepresentable and singular obligation to the other, something that is never fully
117
Priel, D (2011) p. 21.
118
Patterson, D, A Companion to Philosophy of Law and Legal Theory, 2nd ed, (2010), Patterson, D (ed.) Wiley-
Blackwell p. 215.
119
Finnis, J (2015).
120
This means that these laws are made and part of official practice.
121
This means that these laws are rationally required for at least minimal human flourishing.
122
Derrida J ‘Force of Law: The “Mystical Foundation of Authority” In Ed Cornell D, Rosenfield M &. Carlson DG
in Deconstruction and the Possibility of Justice ed by Cornell D, Rosenfeld M & Carlson DG Routledge USA (1992).
123
McLaren BD, Padilla E & Seeber BA The Justice Project (2009) 21.
124
Goodrich P Derrida and Legal Philosophy ed by Hoffmann F, Roenfeld, M & Vismann C, 1ed ( 2008).
125
Litowitz, D, 'Derrida and Legal Philosophy', (2009), 2(1), Notre Dame Philosiphical Reviews, online:
<http://ndpr.nd.edu/news/23897-derrida-and-legal-philosophy/>. (accessed 7 November 2015)
22
present but which is “to come” and which “transcend the now in the mode of
perhaps”’.126
He found it curious that ‘Derrida did not simply hold that justice is relative to social meanings and that
these meanings are relatively fluid and contestable.’127 Admittedly, Derrida’s work has proven to be a
challenge to comprehend. However, Litowitz’s ‘translation’ of Derrida’s views on the concept provides
a basis from which further discussion could be had.
D’Amato128 considers an attempt to commence with a definition of a concept such as justice a ‘false
start’ to any meaningful discussion related to it, for the simple reason that the definitions offered would
only hold persuasive value for those who accept them.129 Rather than generating what might ‘appear
as nothing more than a vast tautology’130 it might be more useful to consider justice ‘not as a single
concept capable of definition, but as a collection of differing viewpoints on fairness in society’.131
The heterogeneous nature of modern society with its pluralistic values, needs and social structures
means that no singular meaning of justice would sufficiently capture its essence as the need for it
manifests itself in society. As a result, an attempt to address access to justice in practice through
universally applicable means may fall short of achieving the very objective. This realisation, in part,
gave rise to the emergence of the legal empowerment paradigm. Considering the nebulous nature of the
concept, access to justice, this study would therefore, instead of embarking on voluminous tautology,
rather consider how the quest for justice manifests in South African society as the foundation for further
discussion.
Access to justice in South Africa
Post-apartheid South Africa has not entirely transcended what is considered to be ‘transitional justice’,
which aims to address the challenges that confront societies as they emerge from serious conflict and
transition from an authoritarian state to a form of democracy.132 Inasmuch as South Africa has
126
Litowitz, D (2009), para 3.(own emphasis added).
127
Litowitz, D (2009), para 5.
128
D’Amato, A, 'On the Connection Between Law and Justice', (2011), Faculty Working Papers, online:
<http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/2>. (acccessed 15 June 2015)
129
D’Amato, A (2011) p. 4.
130
D’Amato, A (2011).
131
Jenkins, JA, The American Courts: A Procedural Approach, (2011) Sudbury, MA: Jones and Bartlett Publishers p.
5.
132
This form of justice is described as ‘…a deeper, richer and broader vision of justice which seeks to confront
perpetrators, address the needs of victims and start a process of reconciliation and transformation toward a more just
and humane society’ (Jenkins, JA (2011) p. 365.).
23
exchanged an apartheid authoritarian state for a constitutional democracy in 1994, the residues of
apartheid continue to haunt contemporary society through its deeply ingrained inequalities. Apartheid
policies were not only implemented by the State but also private citizens, natural and juristic, who were
not required by law to do so.133 The residual effects are hard to dispense with as the ‘culture of authority’
was ingrained in the daily existence of all citizens and the ‘ethic of obedience’ permeated the very fabric
of our society.134 The reversal of the net effects of such a deep-rooted system requires a multipronged
approach at multiple levels, with its focus on the empowerment of the disadvantaged.
Boraine135 refers to five (5) components of a holistic approach to transitional justice, namely,
accountability, truth recovery, reconciliation, institutional reform and reparation. Following the Truth
and Reconciliation Commission’s136 attempts at accountability, truth recovery and reconciliation in
South Africa, for which it received both praise and condemnation,137 the democratically elected
government embarked on the laborious process of institutional transformation and reparation. The slow
pace of regulatory reform and the ongoing conflict on the distribution of resources, for example, are
evidence of the complexity of that transition.
The quest for justice in post-apartheid South Africa, therefore, essentially manifests as a quest for
redress. Persons who perceive themselves to have been treated unjustly, or others on behalf of them,
embark in pursuit of a remedy for the perceived injustice suffered. In answer to the hypothetical
question as to what they seek, the hypothetical responses may centre on the following, which are not
mutually exclusive:
- Punishment for those whom they perceived to have treated them unjustly;
- Compensation for the perceived injustice that they have suffered;
- A fair process through which the perceived injustice is addressed and/or
- Equitable/equal distribution of rights, liberties and benefits within society.
Theorists and practitioners of transitional justice focus on the most effective and legitimate ways of addressing past
wrongs and moving towards the (re)establishment of a decent civil order. (Eisikovits, N, 'Transitional justice' in Zalta,
EN (ed) The Standford Encyclopedia of Philosophy , winter 2016 ed (2016) Metaphysics Research Lab, Stanford
University.)
133
Hodgson, TF (2015) p. 194.
134
Mureinik, E, '‘A Bridge to Where?’ Introducing the Interim Bill of Rights', (1994), 10, South African Journal on
Human Rights, pp. 31–48. p. 31.
135
Boraine, A, 'Transitional Justice' in Heynes, C & Stefiszyn, K (eds) Human Rights, Peace and Justice in Africa
(2006) Pretoria: Pretoria University Law Press.
136
This commission was established under the Promotion of National Unity and Reconciliation Act, 34 of 1995.
137
Verbuyst, R, 'History, historians and the South African Truth and Reconciliation Commission', (2013), 66, New
Contree, pp. 1–26.
24
Legal philosophers have categorised the above as retributive justice,138 restorative justice,139 distributive
justice140 and procedural justice.141 However, without derogating from the ‘other’ forms of justice and,
being acutely mindful of the fluidity of demarcations and the interrelatedness of the various forms of
justice, this study accords itself the privilege of focusing on procedural justice, which it regards as one
of the conduits for accessing the ‘other’ forms of justice. The right of access to procedural justice has
evolved into a constitutional and statutory right in post-apartheid South Africa and forms the focus of
discussion in the ensuing chapters.
The question as to what constitutes access to justice, in this case, procedural justice, in contemporary
South Africa would be best answered by examining whether citizens are legally empowered to pursue,
claim and enforce their rights. Access to justice, within this context, is therefore measured not only by
the substantive legal framework that codifies it and the institutions, human resources and infrastructure
that support it, but the knowledge, values and attitudes that are conducive to ensuring access.142 It should
thus concern itself with whether rights bearers are capacitated to access the mechanisms, formal and
informal, that are intended to facilitate that access. The knowledge, values and attitudes in our
constitutional democracy are to be shaped by an inviolable human rights culture. All of these are
supposed to work in tandem to ensure that the rights holders are empowered to realise their rights. On
the African continent paralegals have proven themselves to be formidable facilitators of that
empowerment process.143
Legal empowerment, as a development objective (aim) as well as an outcome (result), is considered to

be critical from a human rights perspective. It is designed to provide vulnerable communities (such as
the poor) as rights-holders with the legal tools to claim and exercise their rights and to develop the
capacity of duty-bearers (state and non-state) to meet their obligations. The key to ensuring legal
138
The concept of retributive justice mainly concerns itself with proportional punishment for crimes committed by
those who are morally deserving thereof. (Walen, A, “Retributive Justice”, (2014), available at: The Standford
Encyclopedia of Philosophy https://plato.stanford.edu/archives/win2016/entries/justice-retributive/.). (accessed 23
June 2016)
139
Restorative justice refers not only to a process for resolving crime by focusing on redressing the harm done to the
victims, holding offenders accountable for their actions and, often also, engaging the community in the resolution of
that conflict but also to address and resolve conflict in a variety of other contexts and settings (United Nations Office
on Drugs and Crime, Handbook on Restorative justice programmes, (2006) Vienna, Italy: United Nations p. 6.).
140
Distributive justice is concerned with the fair allocation of resources among diverse members of a community.
(Maiese, M, “Distributive Justice”, (2003), available at: Beyond Intractibility
http://www.beyondintractability.org/essay/distributive-justice.) (accessed 23 June 2016)
141
Procedural justice is concerned with making and implementing decisions according to fair processes. People
feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to
accept even outcomes they do not like (Maiese, M, “Procedural Justice”, (2004), available at: Beyond Intractability
http://www.beyondintractability.org/essay/procedural-justice.) (accessed 23 June 2016)
142
UNDP Justice System Programme (2011) p. 3.
143
See Chapter 9.
25
empowerment in South Africa is the systematic identification and removal of the barriers to access to
justice, thereby empowering the poor and the marginalised to influence, access and utilize the
mechanisms and institutions that are designed to improve their lives. Legal empowerment of the
disadvantaged is therefore critical for creating a South African society less unequal than today. What
constitutes legal empowerment requires further examination.
2.3 WHAT IS LEGAL EMPOWERMENT?
Political settlements in post-conflict democracies such as South Africa, with its accompanying
constitutional reforms, have radically altered the relationship between citizens and the state, creating a
new order of citizen entitlement and state responsibilities. Individuals and communities, therefore, have
different expectations about the law, judicial systems and other dispute resolution mechanisms. For
example, where in the past state mechanisms were used to oppress the large majority politically, socially
and economically, the legitimate expectation on the part of this overwhelming majority of poor and
marginalised South African citizens is that these mechanisms would now be transformed into
instruments of transformation on which they can rely so that they can liberate themselves, not only
politically but also socially and economically.
Traditional ‘rule of law’ reforms failed to bring about the transformation required for the sustained
development of vulnerable communities across the world.144 Legal empowerment, as an alternative to
these traditional reforms, is therefore described as a ‘demand-side response to addressing the deficits in
the rule of law.’145 It combines a range of alternative approaches to promoting access to justice that
have been developed largely in response to the discontent with traditional rule of law and law and
development approaches that characterised ‘legal interventions’ for decades.146 The Commission on
Legal Empowerment of the Poor identified four pillars of legal empowerment, namely, access to justice
and the rule of law, property rights, labour rights and business rights.147 A variety of interventions are
applied in this response. These include legal assistance, including legal aid, community-based
paralegals, capacity building and awareness-raising for rights holders and duty bearers.
144
Barendrecht, J & de Langen, M (2008).
145
Bakrania, S, Safety , Security and Justice: Topic Guide, (2014) Birmingham, UK: GSRDC, University of
Birmingham p. 14.
146
Legal empowerment overlaps with activities that resort under ‘legal services for the poor’, ‘public interest law’,
‘alternative lawyering’, ‘developmental lawyering’, ‘social justice’, ‘social accountability’, ‘women’s empowerment’
and ‘strengthening the poor’s land tenure security’. (McInerney, T & Golub, S 2010 McInerney, T & Golub, S (2010)
p. 10.).
147
United Nations Development Programme, Making the Law Work for Everyone, (2008) New York, USA:
Commission on Legal Empowerment of the Poor, UNDP.
26
Although not mainstream, the concept legal empowerment has made its way into the international
developmental dialogue over the past decade.148 Legal empowerment manifests when
‘poor and marginalised people [individually or collectively] use the law, legal systems
and dispute resolution systems (formal and informal) to improve or transform their
social, political or economic situations, to hold power holders to account, or to contest
unjust power relations’149.
Legal empowerment therefore has a social and political context aimed at bringing about social, political
and economic transformation. It is intended to mould the capacity of the disempowered to apply the
law in order to contest and reconstruct the asymmetric power relations that exist in inequitable societies
by holding powerholders, state and non-state, to account. Various factors influence the accessibility of
the law, the quality of justice and its social impact.150 Gloppen identifies some of these, including ‘the
nature of the political regime, the legal framework, dominant social norms and histories of social
mobilisation’. 151 The extent to which legal empowerment impacts on the disadvantaged is therefore
dependent upon the socio-political context, involvement of stakeholders, the nature of the dispute(s)
and the levels of support and opposition to goals and objectives that favour the poor.152 Proponents of
the concept, legal empowerment, claim that it has a positive impact in the form of ‘personal
empowerment’, ‘confirmation and extension of formal rights’, ‘policy change and social accountability’
and ‘increased social justice’.153 This is based on a collection of interventions involving law and
development which has proven itself successful in practice.
Legal empowerment is a broad and multi-faceted concept which does not consist of a single strategy,
nor does it constitute a magic elixir for alleviating poverty. Definitions abound, a core concept
nevertheless emerges. It has been defined as ‘the use of law specifically to strengthen the
disadvantaged’.154 The use of the law within this context is understood to involve not only legislation
and court decisions but a plethora of regulations, procedures, agreements and traditional justice systems
by which the disadvantaged is governed.155 Legal empowerment is also understood to involve legal
148
McInerney, T & Golub, S (2010).
149
Domingo, P & O’Neil, T, Overview: The politics of legal empowerment: Legal mobilisation strategies and
implications for development, (2014) London, UK: Overseas Development Institute (ODI) p. 1.
150
Domingo, P & O’Neil, T (2014).
151
Gloppen, S, 'Litigation as a strategy to hold governments accountable for implementing the right to health.', (2008),
10(2), Health and Human Rights, pp. 21–36.
152
Domingo, P & O’Neil, T (2014) p. 5.
153
154
Golub, S, 'What is Legal Empowerment? An Introduction' in Legal Empowerment: Practitioners’ Perspectives
(2010) Rome, Italy: International Development Law Organisation p. 13.
155
Golub, S (2010).
27
services that are designed to have ‘good laws actually implemented by or for the disadvantaged’.156 It
is intended to enhance the control that vulnerable communities exercise over their daily lives, increasing
their capacity to act on their own. Legal empowerment is thus understood as ‘the process of systemic
change through which the poor are protected and enabled to use the law to advance their rights and their
interests as citizens and economic actors’.157 It is therefore both a process and a goal. As a process it
involves legal reforms and services that improve the bargaining power of these vulnerable communities.
As a goal it is intended to improve the plight of these communities in respect of their income, assets,
health, physical security and freedom.158 Its multi-faceted nature is reflected in the understanding that
it is a ‘means to an end but also an end in itself’.159
Golub categorised the combination of activities that constitute legal empowerment into two groups,
namely, access to information and awareness raising and direct support for meeting the needs of the
target group.160 In both instances the community-based paralegals have proven themselves invaluable
in economically developing countries with a pluralistic legal system where both formal and informal
means of dispute resolution is used.161 Golub abstracted the following five common elements of the
legal empowerment strategy from recent literature:
- Strengthening the capacities and power of disadvantaged.

- Selecting issues on the basis of the needs and preferences of the poor.
- Focusing on broader societal, political, legal and administrative actors, not only the justice
sector.
- Supporting civil society.
- Relying on domestic ideas and initiatives.162
The above signals, in essence, a challenge to the rule of law orthodoxy and an expansion of the concept
‘access to justice’ beyond mere law and development.
In the United Nations Secretary-General’s Report163 a concerted effort was made to convert the concept
legal empowerment into action. The report addresses the conceptual foundation of legal empowerment,
156
Golub, S (2010) p. 13.
157
General Assembly (2009) p. 2.
158
Golub, S (2010) p. 13.
159
Golub, S (2010) p. 2.
160
Golub, S (2010).
161
See Chapter 9.
162
Golub, S, 'The Legal Empowerment Alternative' in McInerney, T (ed) Promoting the Rule of Law Abroad: The
Search of Knowledge (2006) Washington D.C.: Carnegie Endowment for International Peace p. 164.
163
28
its orientation, approach, key areas of priority and highlights the critical issue of the challenge with
legal implementation.164
Legal empowerment constitutes first, at a conceptual level, an expansive interpretation of access to

justice and poverty. The report does not confine access to justice to judicial access, law enforcement
agencies and the services rendered by lawyers. Paralegals and informal dispute resolution feature
prominently as legal empowerment is intended to agentize communities. Legal empowerment also
includes the extensive array of traditional justice systems that communities have been using as the
primary mechanisms to settle conflicts among them.
Legal empowerment further focuses on an expansive view of poverty that encompasses more than
financial well-being and material wealth. Poverty is therefore regarded as more than a ‘lack of material
goods and opportunities such as employment, ownership or productive assets and savings’.165 It
encompasses a lack of legal civil status, good health, bodily integrity, safety, organisational capacity,
capacity to exert political influence and the capacity to enforce rights, in other words, lack of access to
procedural justice. The identification of a lack of access to procedural justice, especially in civil matters,
as a manifestation of poverty is of particular significance in the South African context where poverty
and inequality still prevail. The majority of the citizens appear to be unable to claim and enforce their
rights and, in some instances, communities resort to vigilantism and a defiance of the rule of law. The
report of the Secretary-General accentuates four pillars of legal empowerment, of which three are
focused on livelihood, involving property rights, labour rights and business rights. The fourth pillar
constitutes an enabling framework for access to justice and the implementation of the rule of law. A
critical issue highlighted in the report is that of the need to enforce existing laws. The report
acknowledges the existence of laws to protect the poor but cautions that these laws are often ‘too
ambiguous, cumbersome and costly to access’.166
Secondly, legal empowerment has a grassroots and civil society orientation. The report recognises the
pivotal role that the poor and disadvantaged can play as key actors in their own legal empowerment,
without derogating from the importance of outside assistance. Legal empowerment therefore suggests
a bottom-up approach. It is intended to promote development through ‘empowering and strengthening
the voices of individuals and communities, starting at the grassroots and from within’.167 The report
endorses a concept of legal empowerment that recognises the importance of engaging civil society and
164
Golub S ‘What Is Legal Empowerment? An Introduction’ (2010).
165
Report of the Secretary General (2009) A/64/133, para 8.
166
167
Report of the Secretary General (2009) A/64/133, para 4
29
organisational structures within the community, ensuring that the poor and marginalised have identity
and voice. In so doing, democratic governance and accountability are strengthened, which has the
potential to play a pivotal role in the achievement of development goals and objectives.168
Thirdly, a legal empowerment approach focuses on political economy and social accountability.
A political economy approach acknowledges the limitations of capacity-building and technical
assistance and focuses on the ‘underlying incentive structures of state institutions’.169 Legal
empowerment thus recognises the importance of government and its political will to make legal
empowerment a reality. Legal empowerment should therefore assist in influencing these justice
institutions and the individuals staffing them to execute their responsibilities with due diligence. There
is thus a direct link between the political economy approach of legal empowerment and social
accountability.
Social accountability, which is the ability of communities and individuals to hold governments to
account for service delivery and other functions, is couched by the United Nations in human rights
terms. The report of the United Nations Secretary-General states that,
‘[a] characteristic of virtually all communities living in poverty is that they do not have
access, on an equal footing, to government institutions and services that protect and
promote human rights – where such institutions exist in the first place. Often, they are
also unable to adequately voice their needs, to seek redress against injustice, participate
in public life, and influence policies that ultimately will shape their lives’.170
Fourthly, legal empowerment has key areas of priority, namely gender equity and certain environmental
imperatives. The report recognises that the overwhelming majority of adult poor are women and
highlights women’s rights arguably more than any other legal empowerment focus.171 It recommends
that initiatives such as legal literacy, legal aid and legal reform be actively pursued for the advancement
of women’s legal empowerment.172 The income/asset-increasing value of land and other natural
resources to the poor and its related environmental challenges and opportunities also featured
prominently in the report. Legal empowerment is believed to capacitate vulnerable communities with
the legal tools to proactively protect themselves from the effects of climate change. It further enables
168
169
170
171
172
30
these communities to access new climate funding opportunities and security of land rights is considered
to be critical for access to these opportunities.173
2.4 LEGAL EMPOWERMENT IN SOUTH AFRICA
Legal empowerment of the poor, albeit not known by this nomenclature, is not foreign to the South
African developmental paradigm as it manifests in practice through initiatives such as legal services for
the poor,174 public interest litigation, social justice litigation, social accountability, women’s
empowerment and land tenure security. The community-based paralegal in South Africa plays an
important role in each of these initiatives.175 However, state-funded legal services for the poor are still
heavily focused on criminal justice, the courts and the narrow legal profession and initiatives such as
public interest and social justice litigation are, for the most part, dependent on donor funding.
Moreover, a member of the narrow legal profession in South Africa is still mainly considered to be a
‘hired gun’ whose service is available to those who can afford it and a legal empowerment initiative
such as alternative or developmental lawyering, has lagged behind. Alternative or developmental
lawyering is often perceived as human rights lawyering or the rendering of legal aid.176 However, it
extends beyond public interest litigation and providing free legal assistance.177 Alternative or
developmental lawyering first constitutes lawyering for social justice, secondly, lawyering for social
change and thirdly, lawyering for social development.178 It does not concern itself with technical
assistance and the courts only but extends its enquiry by examining the social context and powers that
impact on the individual’s legal problem.179 Its primary goal is to ‘contribute to the correction or
elimination of deeply rooted unjust social structures and relations’ and employs the law as an instrument
for social change.180 Alternative or developmental lawyering is aimed at ‘work(ing) for a holistic,
sustainable development of persons and communities in a society that is more just, more peaceful, and
more humane’.181
173
174
See Chapter 6.
175
See Chapter 6.
176
Candelaria, S & Mundin, M, 'A Review of Legal Education in the Phillipines', (2010), 55(3), Ateneo Law Journal,
pp. 567–597.
177
Candelaria, S & Mundin, M (2010).
178
179
180
Candelaria, S & Mundin, M (2010) p. 592.
181
31
The socio-legal function that community-based paralegals have performed over decades in South
Africa, in some instances with the support of members of the narrow legal profession, falls within the
domain of alternative or developmental lawyering.182 The array of remedies used by community-based
paralegals, for the most part, does not involve the courts but extends to the corridors of power and even
the streets.183 However, what constitutes a paralegal is by no means settled, nationally or internationally
and requires elucidation.
2.5 THE PARALEGAL DEFINED
One of the prominent features of the concept ‘paralegal’ is the diverse meanings attributed to it not only
across various judicial systems but also within a particular judicial system and South Africa is no
exception. The International Paralegal Management Association defines a paralegal as,
‘a person qualified by education, training or work experience who is employed or

retained by a lawyer, law office, corporation, governmental agency or other entity who
performs specifically delegated substantive legal work for which a lawyer is
responsible’.184
The Paralegal Society of Ontario defines it as ‘an individual qualified through education or experience
licensed to provide legal services to the general public in areas authorized by the Law Society of Upper
Canada’.185 In the United Kingdom, the National Association of Licensed Paralegals (NALP) considers
a paralegal to be ‘a person who is educated and trained to perform substantive legal work that requires
knowledge of the law and procedures but who is not a qualified solicitor or barrister’.186 Various
professional bodies within the United States, such as the American Bar Association,187 National
182
See Chapter 9 for the discussion on the paralegal ‘profession’.
183
See Chapter 9.
184
The International Paralegal Management Association, Position Paper on U.S. Paralegal Regulation, (2011) .
185
The Law Society of Upper Canada, Paralegal Rules of Conduct, (2017).
186
Hamilton, A, “A fine distinction - Amanda Hamilton takes the stand in the paralegal definition debate”, (2012),
available at: New Law Journal https://www.newlawjournal.co.uk/content/fine-distinction-2. (accessed 7 November
2015)
187
In 1997, the ABA amended the definition of legal assistant by adopting the following language: “A legal assistant
or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer,
law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal
work for which a lawyer is responsible.” (American Bar Association; Standing Committee on Paralegals, ABA Model
Guidelines for the Utilization of Paralegal Services, (2012) Chicago, Ill.: American Bar Association, Standing
Committee on Paralegals p. 1.).
32
Federation of Paralegal Associations,188 National Association of Legal Assistants189 and the American
Association for Paralegal Education,190 have their own definition of a paralegal, yet there are three
criteria that are common to these definitions. These are, specialised training, supervision by an attorney
and the substantive legal nature of the work that they perform. All the aforementioned definitions share
one key feature, namely, the law(yer)-centredness of the concept ‘paralegal’.
Countries across the African continent that have a history of paralegalism also have different
definitions. However, the community-based nature of its work seems to be a common feature. The
Paralegal Advisor Services Institute in Malawi describes paralegals as follows: ‘Paralegals, like
paramedics or bare foot doctors, provide “first” legal aid to ordinary people.’191 The Nigeria
Community-based Paralegal Training Manual describes it as ‘a community-based person trained with
the basic knowledge of the law and the legal system.’192 In Sierra Leone they are regarded as ‘laypeople
working directly with the poor or otherwise disadvantaged to address issues of justice and human
rights’.193 However, Sierra Leone’s Legal Aid Act defines ‘accredited paralegal’ as ‘a person employed
by the Board, a government department, an accredited civil society organization or a non-governmental
organization and who has completed a training course in the relevant field of study at the Judicial and
Legal Training Institute or an educational institution approved by the Board’.194 The inclusion of
paralegals in the Legal Aid Act in Sierra Leone is a significant development towards incorporating these
188
The National Federation of Paralegal Associations defines ‘a Paralegal [a]s a person, qualified through education,
training or work experience to perform substantive legal work that requires knowledge of legal concepts and is
customarily, but not exclusively, performed by a lawyer. This person may be retained or employed by a lawyer, law
office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to
perform this work. Substantive shall mean work requiring recognition, evaluation, organization, analysis, and
communication of relevant facts and legal concepts.’ (National Federation of Paralegals Associations, “Paralegal
Definition”, (2016), available at: Paralegals https://www.paralegals.org/i4a/pages/index.cfm?pageid=3315.).(accessed
16 June 2016)
189
The Code of Ethics and Professional Responsibility of this professional body describes paralegals as follows:
‘Legal assistants, also known as paralegals, are a distinguishable group of persons who assist attorneys in the delivery
of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise
regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under
the supervision of an attorney. National Association of Legal Assistants Inc, “NALA Code of Ethics and Professional
Responsibility”, (2007), available at: https://www.nala.org/certification/nala-code-ethics-and-professional-
responsibility. (accessed 16 June 2016)
190
AAfPE describes paralegals according to their scope of practice: ‘Paralegals perform substantive and procedural
legal work as authorized by law, which work, in the absence of the paralegal, would be performed by an attorney.
Paralegals have knowledge of the law gained through education, or education and work experience, which qualifies
them to perform legal work. Paralegals adhere to recognized ethical standards and rules of professional
responsibility.’ American Assocation for Paralegal Education, Statement on Academic Quality, (1998) .
191
The Paralegal Advisory Service Institute, Where there is no lawyer: Bringing justice to the poorest of the poor,
(2015).
192
Akinrimisi, B, Paralegal Training Manual for Nigeria, (2010) Heinrich Böll Foundation.
193
Maru, V, 'Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and
Worldwide', (2006), 31, The Yale Journal of International Law, pp. 427–476.
194
Part I of the The Legal Aid Act, of 2012.
33
practitioners into the conventional legal system and strengthening the legitimacy of the service that they
render.
In South Africa, the definitions clause of the Legal Practice Bill 2002 (Task Team Proposal) contains a
broad definition of a paralegal practitioner as ‘a person who may render legal services as contemplated
in section 43’. Section 43 specifically empowered the Minister of Justice in consultation with the Legal
Practice Council and Paralegal Committee to ‘make regulations to regulate the rendering of legal
services to the public by paralegal practitioners’ and to ‘authorise paralegal practitioners to appear in
courts, subject to conditions as he or she may determine’. The Legal Practice Act contains no definition
of a paralegal. The absence of a definition of the concept from the Legal Practice Act is not surprising
as this Act governs the private legal profession only and hardly any reference is made to the paralegal
in the statute. The Legal Services Charter195 does define the term but confines a paralegal to a ‘non-
profit, community based paralegal providing legal services to poor and rural communities as defined in
the Legal Practice Act’.
In South Africa, the Paralegal Manual196 contains different definitions of the paralegal. In one instance
the paralegal is defined as ‘a person without a law degree who has legal skills, knowledge and
experience’,197 and in another, it is described as ‘an accredited person who has a basic knowledge of
the law and procedures, knows about conflict resolution and procedures and who shows motivation,
commitment, attitudes and skills’.198 Neither definition is useful for the purpose of identifying the
paralegal in South Africa as no system of accreditation of paralegals, statutory or voluntary, exists and
the definition is out of sync with the latest development in paralegal education.199
Dugard and Drage highlight the ‘amorphous’ nature of the construct.200 They nevertheless argue that,
whether the paralegal is an unpaid volunteer or a salaried worker, they share one common characteristic,
namely, ‘direct legal and quasi-legal interface with clients [and/or] the communities they serve’.201 The
community-based paralegal, in particular, straddles the social development and legal systems, hence
the socio-legal nature of their work. It is therefore not surprising that they deal for the most part with
‘the most serious remaining fault lines’ in South African society.202
195
Legal Services Sector Charter, of 2007.
196
Education and Training Unit, Paralegal Manual, (2011) Black Sash p. 653.
197
The Black Sash (2011).
198
The Black Sash (2011) p. 585.
199
The Unit for Applied Law at the Cape Peninsula University of Technology became the first institution of higher
learning to be accredited by the Council on Higher Education to offer a Bachelor of Paralegal Studies degree.
200
Dugard, J & Drage, K, 'To whom do the people take their issues? The contribution of community-based paralegals
to access to justice in South Africa', (2013), 21/2013, pp. 1–41.
201
Dugard, J & Drage, K (2013) p. 11.
202
Dugard, J & Drage, K (2013).
34
The proposed Advice Office Draft Bill offered a definition of the community-based paralegal as a
‘person who provides primary legal services free of charge to indigent persons who cannot afford to
pay for such and who are qualified under this Act’.203 This links the community-based paralegal directly
to legal assistance at the expense of the State. Currently the service is funded by external donors and
by making use of the services of volunteers, which is unsustainable.
The Commission on Legal Empowerment of the Poor (CLEP), an independent international

organisation hosted by the United Nations Development Programme,204 and Ukraine205 share this
community-based feature of the paralegal. These definitions suggest that the community-based
paralegal has a critical role to play in the legal empowerment of marginalised communities and in the
enhancement of access to justice. This provides justification for the focus in this dissertation on the
community-based paralegal.
In the Legal Aid Act206 paralegals are defined as:
‘persons that are not legal practitioners but have knowledge and understanding of the
law, its procedures and its social context acquired through training, education, work
experience or a national registered qualification in paralegal practice’.
This definition uses the narrow legal profession (legal practitioners) as a benchmark to define the
paralegal. This tendency is not uncommon in other countries.207 It is nevertheless problematic in that it
suggests that paralegals are not practitioners of the law. There also seems to be a failure in South Africa
to comprehend the magnitude of legal and quasi-legal services that fall outside the conventional mould
of the narrow legal profession or the courts. This has the potential to produce a rather flawed definition
of a paralegal. The reference to the social context of the law in the definition nevertheless seems to
suggest, in theory at least, recognition of the potential of the paralegal to engage in developmental or
alternative lawyering.
203
The definitions clause of the Community Advice Office Draft Bill (2016).
204
Paralegals are considered to be ‘persons well-respected in their communities who possess certain legal knowledge
and skills (but are not certified lawyers),and who undertake all or some of the following activities: provision of simple
legal advice, information and assistance to individuals; referrals of individuals to other organizations providing legal
services (if more complex legal assistance is needed); community legal education; mediation in conflicts within the
community; identifying, and helping to resolve legal problems important for the entire community through
community mobilization, or by taking appropriate action. (Ogorodova, A, International Study of Primary Legal Aid
Systems with the Focus on the Countries of Central and Eastern Europe and CIS, (2012) Kyiv.)
205
‘Paralegals are community activists who not only have a substantial training in legal principles but also familiarity
with local community norms and practices and an ability to offer advice and advocacy services that go beyond narrow
legal advice.’ ( United Nations Development Programme (2008).)
206
Legal Aid South Africa Act, 39 of 2014.
207
See Chapter 9.
35
The literature illustrates that the term ‘paralegal’ is not only confined to the community-based
practitioner, who is prevalent particularly on the African continent. Paralegal practice also covers a
range of legal and quasi-legal services rendered by persons who are not admitted to the narrow legal
profession. Paralegals in South Africa may function as legal assistants to legal practitioners, for
example, conveyancing paralegals or legal aid paralegals, or independent from legal practitioners, such
as debt counsellors or reviewers and community-based paralegals. The full range of paralegal services
in South Africa has not been examined to date and the construct must therefore be couched in wide
terms. A paralegal in South Africa should thus be considered to be a multi-dimensional construct
consisting of multiple underlying concepts defined by one or more of the following criteria:
qualifications (quasi-legal/legal), market position (employee, volunteer, independent service provider)
and functioning (rendering basic legal and quasi-legal services).
This study proposes a benchmark definition for the construct paralegal within the South African context,
whose scope of practice spans a continuum of services as illustrated in Figure 1 below.208 A paralegal,
for the purpose of this study, will be defined as a person with or without formal legal training, who
renders basic legal and quasi-legal services with or without reward. This proposed definition allows
for the evolution of the construct as informed by its scope of practice. The focus in this study is on the
community-based paralegal as it is most closely linked to access to justice for the poor and the
marginalised. There is a direct link between the scope of practice of the paralegal practitioner and legal
services. Therefore, what constitutes legal services in South Africa requires examination.
2.6 LEGAL SERVICES DEFINED IN SOUTH AFRICA
The definition of legal services is confined to legal services as it is traditionally known to be provided
by the private legal profession. Legal services are defined as ‘work done by a lawyer for a client’,209 or
‘services involving legal or law related matters like the issue of legal opinion, filing, pleading and
defending of law suits etc. by a lawyer or attorney practicing law related services’.210
The second draft of the Legal Services Sector Charter211 defines ‘legal services’ as ‘any form of legal
advice, or drafting of documents, or representation of any person that requires the expertise of a person
trained in the practice of law’. Although it may be argued that the ‘practice of law’ may only be
confined to practitioners of the law such as advocates and attorneys, community-based paralegals have
208
Page 42.
209
Cambridge University Press (2013).
210
“Legal Services definition”, (2007), available at: Legal Explanations http://www.legal-
explanations.com/definitions/legal-services.htm. (accessed 10 June 2016)
211
Department of Justice and Constitutional Development 2007 Legal Services Sector Charter (2007).
36
been identified as stakeholders in the Charter. The conclusion could arguably be drawn that the
definition is broad enough to encompass the basic legal and quasi-legal services rendered by paralegals.
However, although the term ‘legal services’ appears eighty (80) times in the final Charter adopted by
the narrow legal profession, it contains no definition thereof and thus brought no clarity to the scope of
practice of legal and paralegal practitioners.
Furthermore section 33(1) of the Legal Practice Act which deals with the authority to render legal
services, stipulates that:
‘Subject to any other law no person other than a legal practitioner who has been
admitted and enrolled as such in terms of this Act may, in expectation of any fee,
commission, gain or reward—
(a) appear in any court of law or before any board, tribunal or similar institution in
which only legal practitioners are entitled to appear; or
(b) draw up or execute any instruments or documents relating to or required or intended
for use in any action, suit or other proceedings in a court of civil or criminal jurisdiction
within the Republic.’
The concept ‘legal services’ is not defined in the Legal Practice Act and section 33(1) seems to suggest
that legal services is very narrowly defined, confined to a statutory right of appearance and the execution
of instruments and documents related to litigation in a court of law. Section 33(1), read with the Draft
Legal Services Sector Charter, provides for the narrow expansion of the concept ‘legal services’ to
include the rendering of legal advice, which is not defined. The demarcation of ‘territory’ reflected by
section 33(1) shows similarities with developments in countries like the United Kingdom and United
States of America.212 The American Bar Association (ABA) Model Code of Professional
Responsibility213 declared that ‘it is neither necessary nor desirable to attempt a formulation of …what
constitutes the practice of law’. However, it offered a functional definition, in essence confining the
practice of law to those traditionally rendered by lawyers.214 The Legal Services Act215 in the United
Kingdom governs ‘reserved legal activity’216 for licensed solicitors, barristers and those exempted from
212
Amercian Bar Association, Centre for Professional Responsbility, Model Code of Professional Responsibility,
1969.
213
Ethical Consideration.3-5.
214
‘The practice of law relates to the rendition of services for others that call for the professional judgment of a
lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and
philosophy of law to a specific legal problem of a client.’ (Ethical Consideration .3-5).
215
Legal Services Act, of 2007.
216
Ss 12-15 of the Legal Services Act (2007)
Schs 2 & 3 of the Legal Services Act (2007)
37
the exclusion.217 None of these offers a comprehensive definition of legal services rendered to society
as a whole and draws no distinction between secondary and primary legal services. This distinction is
important for the purpose of distinguishing between the scope of practice of the paralegal and that of
the narrow legal profession which impacts directly on the cost of these services. Where legal services
are framed within the context of providing legal assistance or legal aid, a more detailed account of legal
services emerges.
2.7 LEGAL ASSISTANCE DEFINED IN SOUTH AFRICA
A comprehensive description of legal services within the context of legal assistance requires an
examination of the latter as codified in other jurisdictions. The focus here is on Belgium, Ukraine and
Australia. The Judicial Code in Belgium,218 for example, makes provision for two systems of legal
assistance applicable in both civil and criminal matters, namely, primary and secondary legal
assistance219 and legal aid.220 Primary legal assistance means ‘legal assistance in the form of practical
information, legal information, an initial legal opinion or referral to a specialised body or
organisation.221 Secondary legal assistance means ‘legal assistance to an individual in the form of a
detailed legal opinion or legal assistance, whether or not in the context of formal proceedings, and
assistance with a court action, including legal representation’.222
Similarly, in Ukraine, a distinction is drawn between primary and secondary legal services. Secondary
legal assistance is defined as ‘assistance provided by certified lawyers and/or linked to court
procedures’,223 whereas primary legal assistance is defined as ‘any form of individual or community-
oriented legal advice, assistance or representation that may be provided by non-certified lawyers
(paralegals), and which does not include representation before courts or other activities that may only
be performed by certified lawyers.’224 The distinction drawn between primary and secondary legal
services in the Ukraine and Belgium provides useful precedent for the purpose of this study given the
lack of clarity around what constitutes legal services in South Africa.
217
These include the exercise of right of audience, the conduct of litigation, reserved instrument activities, probate
activities, notarial activities and the administration of oaths.
218
Judicial Code, of 1967.
219
Article 446 bis & 508/1 – 508/23 J.C
220
Article 664 – 699 J.C.
221
Article 198 J.C.
222
Article 198 J.C.
223
Ogorodova, A (2012) p. 7.
224
Ogorodova, A (2012) p. 14.
38
Ogorodova cautions against the mere listing of the types of activities that make up legal services, as
such an approach would limit non-court legal action that takes different forms and shapes and evolve
constantly.225 The Alternate Delivery of Legal Services Committee Report226 in Alberta, Canada
expressed a similar view on the mere listing of activities that lawyers perform.227 This report accepted
as a fundamental principle for consumer protection that ‘there are services that only trained, insured,
regulated professions/occupations can provide to members of the public’.228 The report distinguishes
between low risk and low complexity legal services that non-lawyers can provide and higher risk and
higher complexity legal services that require the attention of a lawyer. The importance of striking a
balance between the delivery of competent legal services and access to legal services is identified as
one of the key principles in the definition of the practice of law. The report advises that the spectrum
of legal service activities should be assessed based on the risk to the public and that any definition of
the practice of law should respect the non-lawyer activity authorised by law. The adoption of a legal
services model in South Africa that reflects this balanced approach to the delivery of legal services,
could greatly assist in addressing the legal and quasi-legal needs of citizens in the country.
The nature of legal services is determined by the types of legal problems that these services are intended
to help resolve. Given the fact that the interaction of citizens with the law occurs overwhelmingly
outside the courts, a narrow definition of legal services is wholly insufficient to address the basic legal
and quasi-legal needs of all South African communities, vulnerable or not. Legal services within the
South African context require a conception beyond litigation and lawyer-provided advice, in other
words, beyond the practice of law as it is narrowly defined. These needs are of a civil and administrative
nature, rather than a criminal nature, and it is within these two areas where the primary justice needs
reside.
In addition, no distinction is drawn between primary legal services and secondary legal services in the
country. This conflation results in a mismatch between the provision of legal services and the legal
needs in the country, which, in turn, results in a justice gap. The overwhelming need for legal services
is basic and when these needs are not met, it has the potential to escalate into a legal problem that
ultimately requires intervention by a court of law. Marginally increasing access to legal services
rendered by the narrow legal profession will not close the justice gap that exists in the country, whether
through legal aid, mandatory pro bono services rendered by the narrow legal profession or mandatory
225
Ogorodova, A (2012).
226
Mah, DR, Schutz, F & Fenwick, F, Alternate Delivery of Legal Services, (2012) Alberta, USA: The Law Society of
Alberta.
227
Mah, DR, Schutz, F & Fenwick, F (2012) p. 25.
228
Mah, DR Schutz, F & Fenwick, F (2012).
39
community service of law interns. A failure to recognise the need for primary legal services in South
Africa not only hampers the delivery of access to justice for those who need it most but impedes the
potential of the paralegal to facilitate that access. Legal services, like health services, require different
interventions at different stages.
The absence of a comprehensive description of legal services from key legal instruments229 in the South
African legal framework provides the opportunity to offer a benchmark description. This study draws
on the precedent in Australia where the National Legal Assistance Data Manual230 created broad
categories of legal assistance services. These services are available to individuals, groups, organisations
and communities. Legal services provided for individuals include discrete assistance,231 facilitated
resolution process,232 services of a duty lawyer 233 and representation.234 In Australia, legal services for
the community include community legal education (CLE),235 community education,236 law and legal
service reform,237 stakeholder engagement.238 This service compares favourably with the advocacy role
that community-based paralegals have been performing in South Africa.239
Four broad categories of legal services rendered by legal or paralegal practitioners emerge from the
preceding literature, namely, providing legal information, legal advice, legal support240 (assistance) and
legal representation. All of these services can therefore be provided by a legal practitioner or paralegal
229
Legal Practice Act Legal Practice Act (2014); Legal Aid Act, 39 of 2014; Department of Justice and Constitutional
Development 2007 Legal Services Sector Charter (2007).
230
Commonwealth Attorney-General’s Department, National Legal Assistance Data Standards Manual Australia:
Commonwealth Attorney-General’s Department.
231
This includes information, referral, legal advice, non-legal support and/or legal task (Commonwealth Attorney-
General’s Department p. 4–5.)
232
An activity conducted to assist the parties to resolve or narrow issues in dispute through a screening process
and facilitated by an independent, suitably qualified professional (Commonwealth Attorney-General’s Department
p. 8.).
233
This is once-off legal representation provided free of charge by a lawyer at a court or tribunal (Commonwealth
Attorney-General’s Department p. 9.).
234
This denotes taking ongoing carriage of a legal matter in a representative capacity. (Commonwealth Attorney-
General’s Department p. 10.)
235
CLE includes providing information as well as arranging activities to raise awareness among and provide education
to communities, groups, organisations and schools about the law and how to recognize, prevent and deal with legal
problems. (Commonwealth Attorney-General’s Department p. 13.)
236
These relate to non-legal associated issues such as social welfare that directly impact on the person’s ability to
participate in the justice system to prevent legal matters from escalating. (Commonwealth Attorney-General’s
Department p. 14–15.)
237
These are activities undertaken to change the law and the legal process or to improve the provision of legal
assistance services. (Commonwealth Attorney-General’s Department p. 15–16.)
238
Stakeholder engagement include participation in fora at various levels to improve the co-ordination and delivery of
legal assistance services and/or representation at these fora and/or making collaborative arrangements with other
service providers to integrate and coordinate legal assistance. (Commonwealth Attorney-General’s Department p. 16.)
239
See Chapter 9.
240
This term is used to avoid confusion between legal assistance, which refers to the comprehensive continuum of
services and legal assistance as defined in the National Legal Assistance Data Standards (Commonwealth Attorney-
General’s Department.).
40
practitioner (as defined in this study) depending on the degree of complexity of the matter and the risk
to the client. However, the benchmark description of legal services proposed by this study is also
informed by the caveat expressed by Ogorodova as well as the description of legal services for the
community contained in the Australian National Legal Assistance Data Standards Manual.241 This
benchmark description therefore refers to broad categories of legal services only and a detailed model
will have to be developed through research and stakeholder engagement. This study also does not
embark on the demarcation of the scope of practice of practitioners of the law in the country, as it will
divert its purpose.
2.8 A LEGAL SERVICES FRAMEWORK IN SOUTH AFRICA
A broad framework of legal services in South Africa, for the purpose of this study, includes, providing
legal or quasi-legal information242 or advice243, assisting a client/s in a law related matter244 or
representing a client/s in a law related matter.245 Figure 1 below offers a diagrammatic representation
of a basic framework for legal services in South Africa.
241
See the preceding paragraph.
242
This includes information about the law, legal systems and processes, legal and other support services to assist in
the resolution of legal and related problems, including referral.
243
This entails fact-specific legal advice.
244
This refers to performing a ‘legal task’ such as preparation or drafting of documents, writing a letter on behalf of a
client requesting another to do or refrain from doing something, advocating on behalf of a client/s without taking
ongoing carriage of the matter, facilitating dispute resolution and a minor appearance on behalf of a client.
245
This entails representation of a client at a dispute resolution forum or a court/tribunal, or taking carriage of a matter
that doesn’t proceed to a court/tribunal/inquiry.
41
Figure 1. Legal Services Framework
Legal services, in terms of this framework, constitute a continuum of services that can be categorised
as primary or secondary legal services. This continuum of services requires the legal practitioner246 or
paralegal practitioner247 to inform, to advise, to support and/or represent a client. Legal services are
categorised as primary or secondary depending on the degree of legal complexity of the service and the
risk to the client should it be rendered by an unqualified practitioner. The degree of complexity and
risk of the legal service also assists in determining which practitioner is better qualified to render the
service.
Determining the latter is indeed not uncontested space among legal practitioners, nor between legal and
paralegal practitioners. Given the fact that neither legal practitioners nor paralegal practitioners
represent a homogenous group, the multiple shaded area between the conventional domain of the
practitioners represents the potentially contested space. However, there are legal services at the high
complexity/risk end that can clearly only be performed by individuals who have received specialised
training. This should be the domain of the legal practitioner and the trained paralegal may perform a
support function under the supervision of the legal practitioner. On the other hand, there are legal and
quasi-legal services at the low complexity/risk end that can be performed by individuals who have
246
As defined in the Legal Practice Act (2014). (See Chapter 8)
247
As defined in this study.
42
acquired a certain degree of literacy or narrowly focused legal training and/or experience and gained
insights into the social complexities of the situation that manifests as a legal problem. This should be
the domain of the paralegal practitioner and the legal practitioner may perform a support function as
legal assistance at this end may include a range of remedies which may or may not include litigation.
2.8.1 Information service
Providing information to a client or clients includes, among others, supplying information about the
law, the legal system and processes, legal and other support services (such as the services of an
ombudsman, social and health services), as well as referring the matter to the relevant department or
agency tasked with dealing with the matter. It also includes community legal education and community
education as defined above. Providing information at the higher end may involve, for example,
information on mergers and acquisitions and the Rules Regulating the Conduct of Proceedings of the
Supreme Court of Appeal of South Africa. At the lower end it may, for example, involve information
on the procedure to follow if the client wishes to lodge a complaint with one or other alternative dispute
resolution forum or require information on how to access a social grant. However, rendering an
information service and performing a screening function, for the most part, are atypical services for a
legal practitioner. For that reason, information services represent the narrow end of the legal
practitioner’s domain. The paralegal practitioner, on the other hand, is regarded as the ‘first aid’ to the
legal problem, therefore, providing information, screening and referral represent the broad end of
paralegal services.
2.8.2 Advisory service
Advising a client requires the practitioner to analyse the legal or quasi-legal problem and suggest
possible solutions, in other words, providing fact-specific legal advice to resolve the problem. At the
higher end of the spectrum this may, for example, require a detailed legal opinion advising a government
department of its prospects of success in pursuing an appeal to the Constitutional Court on a highly
complex constitutional matter, which requires the services of a legal practitioner. At the lower end, it
may require a basic opinion on whether the employer of a domestic worker is compliant with the
minimum wage requirement as prescribed. This is a service that can be rendered by a paralegal
practitioner.
43
2.8.3 Support service
Assisting a client involves performing a legal task such as preparation or drafting of documents or
assisting therewith, interceding on behalf of a client by communicating with the other party or parties
to the dispute orally or in writing and advocating on behalf of a client or clients with or without taking
ongoing carriage of the matter. It further entails facilitating dispute resolution. At the higher end of
the continuum, legal services may, for example, involve the drafting of an international trade agreement
whereas at the lower end it may involve assisting a client with the preparation of documents for a
commercial matter that falls within the jurisdiction of the Small Claims Court. The first requires the
service of a highly skilled practitioner, whereas the latter service could be rendered by a trained
paralegal.
2.8.4 Representation service
Representation entails representing a client at a dispute resolution forum or a court or tribunal, or taking
carriage of a matter that does not proceed to a court, tribunal or inquiry. However, it could also entail
representing individuals, communities or groups at various levels in various fora to coordinate and
integrate the delivery of legal and other services. At the higher end of the continuum it may, for
example, involve the drafting of complex legal pleadings and appearance on behalf of a client in a
superior court, which requires the services of a legal practitioner. At the lower end, it may require
representing a client in an alternative dispute resolution forum such as the CCMA, which is a service
that can be rendered by a paralegal practitioner. Although representation is currently reflected as the
broad end of the services rendered by legal practitioners and the narrow end for paralegal practitioners,
an assessment of the legal needs of citizens in the country and expanding representation beyond the
conventional courts and litigation may alter the manner in which representation is reflected.
Legal services with a high degree of complexity and risk should be rendered by practitioners of the law
with the required knowledge and skill to do so, whereas primary legal services with a low degree of risk
may not require formal legal training. Whether legal assistance should be categorised as primary or
secondary and determining who is better suited to provide the legal assistance beyond the domain of
legal and paralegal practitioners as demarcated in this framework, requires investigation. The
constitutional obligation on the part of the State to provide access to, at the very least, procedural justice,
which is not only confined to the courts and litigation, should be a key determinant in this process.
Secondary legal services rendered by legal practitioners, in true supply and demand fashion, is
ostensibly available to all those who require it in South Africa, without discrimination. However, many
persons with limited or no wealth or knowledge of the regulatory framework that governs their daily
44
lives and who often also experience a host of other barriers to access to justice, find these services
inaccessible. Primary legal services rendered by community-based paralegals are also limited and
dependent upon donor funding and volunteerism. Bearing in mind that the social contract between the
State and its citizens, codified in the Bill of Rights, places an obligation on the State to provide peaceful
alternatives to the settling of disputes without discrimination, the State is obliged to provide some form
of legal assistance for those who are unable to access procedural justice. Legal assistance, at the expense
of the State, in other words, legal aid, is required to meet not only the criminal justice needs but also
the civil justice needs of the poor and the marginalised in the country. The concept legal aid is therefore
addressed next.
2.9 WHAT IS LEGAL AID?
The earliest recorded statutory form of legal aid was apparently contained in the Statute of Henry VII
1495 which allowed for the waiving of all fees for indigent civil litigants in the common law courts in
England. This statute empowered the courts to appoint lawyers to provide representation in court
without compensation.248 Continental statutes during the 19th century codified the principle of ‘poor
man’s law’ which allowed for waiving of court fees and appointment of a duty lawyer for the poor.249
The legal aid was therefore provided on a pro bono basis. What emerged from this is a concept of legal
assistance synonymous with free legal representation by a practitioner of the law in a conventional
court.
Although several international human rights treaties recognise the right to free legal assistance (legal
aid) as an essential component of a fair trial, the express codification thereof is limited to criminal
matters.250 More importantly, a definition of legal aid/assistance is absent from these treaties.251 The
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems contain
the only mutually agreed upon international definition of legal aid. It is defined as
248
Johnson Jr, E, 'Toward Equal Justice: Where the United States Stands Two Decades Later', (1994), 5(2), Maryland
Journal of Contemporary Legal Issues, pp. 199–221. p. 204.
249
Blankenburg, E, 'Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid” contained in
Volume II of the Conference Papers presented at the International Legal Aid Conference', (1997), Edinburgh, June 2,
pp. 1–12. p. 2.
250
Report of the Special Rapporteur on the independence of judges and lawyers, (2013) A/HRC/11/41/Add.3 United
Nations. paras 20-24.
251
Report of the Special Rapporteur on the independence of judges and lawyers (2013). para 26 Human Rights
Council, 23rd session Item 3 Promotion and Protection of all human rights, civil, political, economic, social and
cultural including the right to development.
45
‘legal advice, assistance and representation for victims and for arrested, prosecuted,
and detained persons in the criminal justice process, provided free of charge for those
without means’.252
This definition contains a number of core features. It makes provision for the offering of services on a
continuum, from legal advice, to assistance, to representation. This service is made available to victims
and alleged perpetrators alike and thus applies to criminal proceedings only. It is also made available at
the expense of the State and citizens qualify for it when they are unable to pay for it.
Although legal assistance and legal aid are used interchangeably internationally, legal aid in South
Africa is commonly referred to as such when legal assistance is provided at the expense of the State.
Ironically neither the Legal Aid South Africa Act nor the Legal Aid Guide253 contains a definition of
legal aid. This definitional vacuum supports and encourages the justification for the lack of legal
assistance in civil matters. Considering the extensive range of legal services required in modern
societies and the obligation of the State in terms of its social contract, legal aid/assistance can no longer
be confined to the definition offered by the Principles and Guidelines above, especially in a South
African society that mirrors the characteristics of both an economically developing and developed world
with its ingrained inequalities presenting multiple barriers to access to justice. The Report of the Special
Rapporteur stated that the purpose of legal aid is to assist in removing barriers to access to justice by
providing assistance to those who are otherwise unable to afford legal representation and access to the
court system. It noted specifically that,
‘…the definition of legal aid should be as broad as possible. It should include not only
the provision of legal assistance in criminal proceedings…but also the provision of
effective legal assistance in any judicial or extra-judicial procedure aimed at
determining rights and obligations’.254
Legal aid, therefore, has to be re-imagined to include free legal assistance, on a continuum suggested
in Figure 1,255 regardless of the nature of the proceedings, rendered by a range of practitioners depending
on the complexity of the matter and the risk to the client and should be subjected to a means and a merit
252
United Nations Office on Drugs and Crime, Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems, (2013) Vienna: United Nations p. 6.
253
Legal Aid South Africa, Legal Aid Guide, 13th ed, (2014) Johannesburg, South Africa: Juta & Co. Ltd.
254
Report of the Special Rapporteur on the independence of judges and lawyers (2013).
255
Page 42.
46
test. This will be discussed in greater detail in Chapter 6. Since the right to an effective remedy is
central to the right of access to procedural justice, a discussion on this concept will be examined briefly.
2.10 WHAT IS A LEGAL REMEDY?
The right to an effective remedy is considered to be a ‘key element of human rights protection’ 256 and
‘implies that remedies must be effective and legal, and that judicial outcomes must be just and
equitable’.257 This right encompasses redress sought for all human rights violations, whether first,
second or third generation rights.
Definitional ambiguity seems to obscure the subject of remedies in international law.258 In some
instances reference to a remedy denotes both a procedural and a substantive remedy and in others a
procedural remedy only.259 The right to a remedy could be defined as ‘the right to vindicate one’s right
before an independent and impartial body, with a view to obtaining recognition of the violation,
cessation of the violation if it’s continuing, and adequate reparation’.260 This definition suggests that
this right denotes two separate but interrelated legal concepts, namely, legal action and reparation.
The International Commission of Jurists distinguishes between remedy and reparation, referring to the
former as procedural remedy and the latter as ‘the obligation to provide compensation, satisfaction,
restitution and rehabilitation’, in other words, a substantive remedy.261 The Commission identified the
following characteristics of an effective remedy as it emerged from the interpretation of international
human rights bodies, namely, promptness and effectiveness, independent authority, accessibility,
including legal assistance, leading to cessation and reparation, leading to an investigation, varying
nature of the remedy and compliance and enforcement by the authorities. Pertinent to this study are the
characteristics of independent authority and accessibility, which includes legal assistance.
256
Report of the Special Rapporteur on extreme poverty and human rights, (2012) A /HRC/23/36/Add.1 United
Nations p. 4.
257
Report of the Special Rapporteur on extreme poverty and human rights (2012).
258
Musila, GM, 'The right to an effective remedy under the African Charter on Human and Peoples’ Rights', (2006),
6(2), African Human Rights Law Journal, pp. 441–464. p. 445.
259
Musila, GM (2006).
260
Droege, C, The Right to a Remedy and to Reparation for Gross Human Rights Violations - A Practitioners Guide,
2d ed, (2006) Geneva, Switzerland: International Commission of Jurists.
261
Droege, C (2006).
47
The Constitution of the Republic of South Africa contains two primary remedy clauses, 262 namely, the
‘supremacy clause’263 and the ‘fundamental rights remedy clause’264, and a secondary remedy clause.265
The South African Constitution therefore distinguishes between a procedural remedy and a substantive
remedy and provides expressly for both. The concept remedy, therefore, for the purpose of this study,
denotes both a procedural as well as substantive remedy. However, this study focuses on a procedural
remedy which includes the right of access to the courts, tribunals and other dispute resolution
mechanisms266 and the right to legal representation.267 The right to legal representation is included in
the focus of this study first, because the right to procedural justice is meaningless without it and,
secondly, because of its relevance for a paralegal ‘profession’.
2.11 CONCLUSION
Justice is a nebulous concept and a consideration of the traditional schools of thought generated no
universally acceptable definition. However, this investigation proceeds from the premise that within
the South African context, a comprehensive examination of justice should involve what is considered
to be retributive justice, restorative justice, distributive justice and procedural justice. The right to
procedural justice has evolved into a fundamental human right in post-apartheid South Africa. This
study focuses on procedural justice, being acutely mindful of the interrelatedness of the various forms
of justice.
262
Klaaren, J, 'Judicial Remedies' in Chaskalson, M (ed) Constitutional Law of South Africa, 1st ed (1999) Kenwyn,
South Africa: Juta.
263
S 2. ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled.’
264
S 38. ‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of
rights...’
265
S172 (1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent
authority to correct the defect.
(2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order
concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
[Par (a) substituted by s. 7 of the Constitution Seventeenth Amendment Act, 72 of 2012.].
(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief
to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act
or conduct.
(c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to
confirm or vary an order of constitutional invalidity by a court in terms of this subsection.
266
S 34 & 38.
267
S 35(3)g.
48
Access to justice requires the systematic identification and dismantling of the barriers to access to
justice, especially those that confront vulnerable communities. These communities often see the law as
a means of oppression rather than liberation. Access to justice should therefore be measured by the
extent to which citizens are legally empowered to pursue, claim and enforce their rights. The sustained
development of the marginalised and the poor therefore necessitates a shift in the conceptual framework
from the ‘rule of law orthodoxy’ to legal empowerment of the poor. Legal empowerment is described,
in brief as ‘the use of law specifically to strengthen the disadvantaged’.268 This paradigm manifests in
South Africa as legal services for the poor, public interest litigation, social justice litigation, social
accountability, women’s empowerment and land tenure security. The community-based paralegal, in
particular, plays a central role in the legal empowerment of the poor in the country.
The nature of the service rendered by the paralegal is highly contextual which renders its scope of
practice heterogeneous and the nomenclature of the practitioner fluid. The paralegal, for the purpose
of this study, is defined as a person with or without formal legal training, who renders basic legal and
quasi-legal services with or without reward. The scope of practice of the paralegal is defined by the
legal needs of the community. This requires legal services to be expressed as a continuum of services
which involves providing legal information, advice, support and representation. The degree of
complexity of the service and the risk to the client will determine which practitioner is better qualified
to render this service. These two factors will also assist in determining whether the legal service is
categorised as primary or secondary. This is indeed not uncontested space and would require thorough
investigation.
The State has a constitutional obligation to provide an effective remedy for the disputes that arise
between the State and citizens and between citizens themselves. The literature suggests that an effective
remedy denotes both legal action and reparation. The Constitution of the Republic of South Africa
provides expressly for a procedural and a substantive remedy. The focus in this study is on a procedural
remedy, which includes the right of access to the courts and other dispute resolution mechanisms. This
right, in many instances, is rendered meaningless without the right to legal assistance and the right of
access to procedural justice may require that this assistance is rendered at the expense of the State. A
legal service rendered at the expense of the State in South Africa is regarded as legal aid.
Whether the State succeeds in providing access to justice to its citizens is measured by the knowledge,
values and attitudes that are conducive to ensuring access, the substantive legal framework that codifies
it and the institutions, human resources and infrastructure that support access to justice. The
268
Golub, S (2010) p. 13.
49
constitutional values, substantive legal framework, institutions and human resources that support access
to justice in South Africa are the themes that inform the structure and content of this thesis. The manner
in which the constitutional values of human dignity, equality and freedom shape access to procedural
justice in South Africa will thus be examined in Chapter 3.
50
Part II
The Constitutional Values that Support Access to Justice in South Africa
51
CHAPTER 3
THE VALUES OF HUMAN DIGNITY, EQUALITY AND FREEDOM IN THE SOUTH

AFRICAN CONSTITUTIONAL ORDER
3.1. INTRODUCTION
Access to justice, in part, is measured by the knowledge, values and attitudes that are conducive to
ensuring access. The Constitution informs us that the content, scope and limitations of the rights that
are enshrined in the Bill of Rights should be determined through the prism of five fundamental values
that animate the new democratic order in South Africa, namely openness, democracy, human dignity,
equality and freedom.269 Woolman and Botha argue that openness and democracy do not operate on
the same normative plane as human dignity, equality and freedom.270 The author concurs with this
view.
This chapter, therefore, examines the way in which the values of human dignity, freedom and equality
shape a human rights-based approach to access justice in South Africa. This examination includes a
consideration of distinct waymarks that make express reference to these values. These waymarks
include the preamble, founding provisions and sections 7, 36 and 39 of the Constitution.
The convergence of natural law and positive law is a characteristic of all human rights instruments such
as the Constitution.271 The view is held here that the right to human dignity, freedom and equality are
innate to all human beings. Their existence predates their express codification as rights in the
Constitution and an individual’s claim to these rights does not depend on such express codification.
The values of human dignity, equality and freedom to a greater or lesser extent permeate every right in
the Bill of Rights and influence the manner in which each right in the Bill of Rights is to be interpreted.
This permeation is not coincidental.
First, human rights are interrelated and interdependent. A synthesis of constitutional jurisprudence led
Woolman to conclude that dignity operates as a first order rule, a second order rule, a correlative right,
a value and a grundnorm and sometimes all of the aforementioned combined.272 Equality and freedom
269
S 39(1) of the Constitution of the Republic of South Africa, 1996
270
Woolman, S, 'Dignity' in Woolman, S et al (eds) Constitutional Law of South Africa, 2d ed (2006) Juta.
271
See the discussion on the traditional schools of thought in Chapter 2.
272
Woolman, S (2006).
52
display similar characteristics.273 These values are not only regulative ideals, but substantive rights.
They function as correlative rights, each justiciable in their own right,274 their justiciability as
freestanding rights means that they operate as first order rules and can also be invoked as second order
rules. Constitutional jurisprudence bears this out. Bhe and Others v Magistrate, Khayelitsha, and
Others demonstrated the correlative nature of the right to equality and dignity,275 National Coalition for
Gay and Lesbian Equality and Another v Minister of Justice and Others276 and Ferreira v Levin277 the
right to dignity and individual freedom, and President of the Republic of South Africa v Hugo278
demonstrated the interrelatedness of all three rights. These three values and their corresponding rights
thus impact on each other with reciprocal effect.
Secondly, these three values have not only been entrenched in various waymarks in the Bill of Rights,
but they have also been super-entrenched in the preamble and the founding provisions of the
Constitution. The fact that these values are not only embedded in the preamble and founding provisions
but are also given explicit expression in the text, clothes them with exceptional foundational importance.
Each of these values will be considered in turn.
3.2. HUMAN DIGNITY
Woolman proceeds from the premise that dignity is grounded in the understanding that ‘justice consists
of the refusal to turn away from suffering’.279 He refers to dignity, as contained in our Constitution, as
‘a set of rules that disposes of specific disputes in a court of law’. However, he stresses that dignity is
also ‘a philosophical concern’.280 The ‘refusal to turn away from suffering’, in his view, triggers a moral
awakening from which the following wisdoms emerge:
(a) that others are entitled to the same degree of concern and respect that we
demand for ourselves; and
273
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002
(CCT31/01) ZACC 22.
274
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) (2002).
275
Bhe and Others v Khayelitsha Magistrate and Others 2004 (CCT49/03) ZACC 17.
276
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (CCT11/98)
ZACC 15.
277
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1995 (CCT5/95) ZACC 13.
278
President of the Republic of South Africa and Another v Hugo 1997 (CCT11/96) ZACC 4.
279
Woolman, S (2006) p. 2.
280
Woolman, S (2006).
53
(b) that others are entitled to that equal respect and equal concern because
they, like us, are possessed of faculties that enable them to pursue ends
which give their lives meaning.281
These two wisdoms demonstrate the interconnectedness of the right to dignity, equality and freedom.
A dignified existence is thus defined as having equal regard for each other and the freedom to make
meaning of your own life.
Woolman deduces, following a synthesis of South African constitutional jurisprudence on the subject,
that five definitions of dignity emerge. Drawing on similar constructs by Kant282 and Rawls,283
Woolman suggests that the five definitions of dignity constitute the foundation from which a ‘realm of
ends’ can be constructed.284 The first definition, namely, the ‘individual as an end-in-herself’, is
grounded in the Kantian imperative of respect for the immeasurable inner worth of each individual.285
The individual is viewed simultaneously as a means and an end. Dignity, in this respect, sets the
minimum criteria which ethical and legal behaviour must meet.286 The second definition, dignity as
‘equal concern and respect’, is intimately connected to equality.287 Dignity demands equal treatment.
The law may therefore not irrationally differentiate between classes of persons nor reflect the ‘naked
preferences’ of the State.288 Equal treatment requires that individuals should not be subjected to
discrimination on arbitrary grounds.
The third definition, namely, dignity as ‘self-actualization’, is closely associated with agency-
freedom.289 In this context, dignity describes a political state and not a metaphysical state of being. 290
The Constitutional Court captured this view as follows: ‘An individual’s human dignity cannot be fully
respected or valued unless the individual is permitted to develop his or her unique talents optimally.’291
Dignity, therefore, safeguards the realm of self-actualisation.
281
Woolman, S (2006) p. 17–18. (own emphasis added).
282
(1724-1804) Immanual Kant was one of the most influential philosophers in the history of Western philosophy.
283
(1921-2002) John Rawls was an American political philosopher in the liberal tradition.
284
Woolman, S (2006).
285
Woolman, S (2006) p. 7.
286
Woolman, S (2006) p. 9. ‘Dignity… sets a floor below which ethical and legal behaviour may not fall’.
287
Woolman, S (2006) p. 10.
288
Woolman, S (2006).
289
See the discussion on freedom in para. 3.3 below.
290
Woolman, S (2006) p. 11.
291
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others (1995).
54
Dignity as ‘self-governance’ recognises the capacity of most individuals to reason and legislate for
themselves.292 Individuals are therefore capable of shaping their own ends. Here, dignity is again
intricately linked to agency-freedom. The Constitutional Court has been reluctant to recognise a form
of agency-freedom of the individual that excludes interference in any form or shape.293 In a
constitutional democracy, dignity requires that individuals, at the very least, must be able to participate
meaningfully in the ‘collective decision-making processes that determine the ends of [their]
community’.294 Dignity requires that the agency-freedom of the disadvantaged be enhanced to ensure
such meaningful participation.
Finally, dignity as ‘collective responsibility for the material conditions of agency’ focuses beyond the
individual ends in the ‘realm of ends’ and attaches dignity to society as a whole. 295 For this purpose,
dignity is regarded as a ‘collective good’.296 The Constitutional Court has made it clear that,
‘[i]t is not only the dignity of the poor that is assailed when homeless people are driven
from pillar to post in a desperate quest for a place to where they and their families can
rest their heads. Our society as a whole is demeaned when state action intensifies rather
than mitigates their marginalisation’.297
Dignity is therefore not only a manifestation of citizen entitlements and corresponding State
responsibilities. It requires a shared recognition that society, collectively, bears the responsibility for
the material conditions for agency. This definition of dignity bears a strong resemblance to Sen’s
capability approach to freedom and development.298
Ending discrimination, refusing to turn away from suffering and granting all citizens the franchise
represent an important start in the quest for the recognition of the dignity of all citizens.299 However,
dignity as a value and a substantive right requires the recognition of others not only as means, but also
as ends. This requires society as a whole to commit itself to create the conditions conducive to agency.
Denying others the means to exercise their agency or frustrating them in their efforts might very well
292
Woolman, S (2006) p. 12.
293
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others (1995).
294
Woolman, S (2006) p. 13.
295
Woolman, S (2006) p. 14–15.
296
Woolman, S (2006) p. 15.
297
Port Elizabeth Municipality v Various Occupiers 2004 (CCT53/03) ZACC 7, para 18.
298
See para. 3.3 below.
299
Woolman, S (2006).
55
undermine the purpose of the Constitution and render the guarantees contained in the Bill of Rights
meaningless.
3.3. FREEDOM
The sparsity of Constitutional Court jurisprudence in South Africa dealing with freedom as an
aspirational ideal is a reflection of the complexities of the concept.300 Ackermann J in Ferreira v Levin
attempted to ground a disjunctive reading of the right to freedom and security of person in, what Bishop
and Woolman describe as, the ‘Berlinian conception of “freedom” as negative liberty’.301 Ackermann
defined the right to freedom as the right of individuals not to have ‘“obstacles to possible choices and
activities” placed in their way by…the state’.302 Petit considers this school of thought, freedom as non-
interference, as a ‘diluted form of agency-freedom’ that results from a failure to focus decisively on
either freedom as non-limitation or freedom as non-domination.303 The majority in Ferreira v Levin
remained unconvinced that section 12(1) of the Constitution grants two distinct rights, namely the right
to freedom and the right to security of person. The notion of freedom as an independent justiciable
right, beyond the express constitutional imperatives, was therefore not entertained.
Petit claims that debates in recent times around the nature of social freedom, which is mainly understood
in a negative way, have generated three schools of thought.304 These are freedom as non-limitation,305
non-interference306 and non-domination.307 Freedom as non-limitation is regarded as ‘a function of how
much choice a person is left by his or her overall context, human and natural…’.308 Freedom as non-
domination is considered to be ‘a function of how far the person can live and choose beyond the
arbitrary power of others’.309 Freedom as non-interference ‘holds that freedom is a function of how
300
Woolman, S, Bishop, M, Chaskalson, M, et al, Constitutional Law of South Africa, 2d ed, (2006), Woolman, S &
Bishop, M (eds.) Juta.
301
Bishop, M & Woolman, S, 'Freedom and security of the person' in Woolman, S et al (eds) Constitutional Law of
South Africa , 2d ed (2006) 1 p. 7.
302
Woolman, S (2006), para 54.
303
See the ensuing discussion.
304
Pettit, P, 'Agency-freedom and Option-freedom', (2003), 15(4), Journal of Theoretical Politics, pp. 387–403.
305
Steiner, H, An Essay on Rights, (1994) Oxford, UK: Blackwell; Sudgen, R, 'The Metric of Opportunity', (1998),
14(2), Economics & Philosophy, pp. 307–337.; Carter, I, A Measure of Freedom, (1999) Oxford, UK: Oxford
University Press.
306
Berlin, I, Four essays on liberty, (1969) London, UK: Oxford University Press; Miller, D, 'Constraints on freedom',
(1983), 94(1), Ethics, pp. 66–86.
307
Pettit, P, Republicanism: A Theory of Freedom and Government, (1997) Oxford, UK: Oxford University Press;
Skinner, Q, Liberty Before Liberalism, (1998) New York, USA: Cambridge University Press; Virolu, M & Shugaar,
A, Republicanism, (2001) New York, USA: Hill and Wang.
308
Pettit, P (2003) p. 387.
309
Pettit, P (2003) p. 388.
56
much choice someone is more or less intentionally [or negligently] left by other individuals and
groups’.310
Petit argues that social freedom is understood as option-freedom or agency-freedom and that the
differences between the schools of thought are maintained by vacillating between these two types of
freedom. However, it is his contention that these two types of freedom are not in conflict. Option-
freedom concerns itself with the ‘character of the options that are accessible to the agent’ and the
‘character of the access to these options that the agent enjoys’.311 Variations in the nature of the access
that the agents enjoy influence the overall freedom of these agents. Carter,312 Steiner313 and Taylor314
nevertheless advanced the argument that the ‘physical possibility’ of the agent exercising the option
satisfies the requirement of access to the options. These authors claim that different agents presented
with a number of options will be equally free to choose between the options, provided that it is
physically possible for them to choose an option. Yet, option-freedom is also measured by the diversity,
the objective significance315 and the subjective significance316 of the options.
Vulnerability to influences affects the capacity of agents to exercise their freedom of choice
autonomously. This vulnerability affects the access that agents have to the full complement of choices
on offer. Freedom-affecting influences stem from interpersonal317 or impersonal318 causes.
Interpersonal causes may manifest negatively through the intentional conduct of others by obstructing,
burdening or threatening to obstruct or burden the choice of the agent.319 It may also manifest through
the awareness of others of the vulnerability of one agent vis-à-vis another.320 Factors such as penalty
and awareness thus impact on the capability of the agents to exercise their choices. The mere fact that
310
Pettit, P (2003).
311
Pettit, P (2003) p. 389.
312
Carter, I 1999 Carter, I (1999).
313
Steiner, H 1994 Steiner, H (1994).
314
Taylor, M, Community, Anarchy and Liberty, (1982) Cambridge, USA: Cambridge University Press.
315
Objective significance ‘represent[s] ways of the changing world’ (Pettit, P 2003 Pettit, P (2003) p. 392.)
316
Subjective significance ‘represent[s] choices that matter within the local culture or according to the agent’s own
values system. Pettit, P (2003).
317
Interpersonal causes reflects ‘the intentions and attitudes of the others towards the agent (Pettit, P (2003) p. 393.).
318
Impersonal causes are associated with ‘brute, [miserly] nature; with the social system considered as something
beyond anyone’s control; or with the unintended impact of others’ actions’. (Pettit, P (2003).).
319
For example, a commuter in a township is presented with the option of joining a lift club or taking a minibus taxi to
work. This choice is affected by the minibus taxi cartel illegally controlling the exit road from the township, only
allowing the driver of the vehicle through and not the passengers, unless they walk or take a minibus taxi.
320
A seller of a defective product may, for example, be aware of the poor literacy levels of a buyer. The buyer may be
unaware of the automatic warranty against defective products contained in section 55 of the Consumer Protection Act
68 of 2008 and the range of remedies that it offers. This warranty provides the buyer with the remedies of having the
defective product repaired, replaced or the buyer could be refunded upon returning the product. The choice of
remedies is at the behest of the buyer. The more knowledgeable seller may offer to repair the defective product,
which the buyer accepts, unaware of the options.
57
it is physically possible for agents to exercise their options is no guarantee of their agency. This is
tantamount to offering agents the chimera of equality by presenting them with formal equality.
Petit describes agency-freedom as ‘a property of agents’ and ‘an ideal that turns on how a person relates
to their fellows, not something that is fixed just by the quantity of choice they enjoy’.321 It is essentially
a matter of social standing or status. Persons enjoy their agency-freedom when a number of conditions
are met. This occurs when their option-freedom is protected to the same extent as others and that the
extent of the protection is common knowledge.322 Equality is therefore inextricably linked to agency-
freedom.
One kind of freedom without the other handicaps the agent. Agency-freedom without option-freedom
may guarantee the agent the full protection of the law and that protection may be common knowledge,
yet the agent might, for example, suffer from economic poverty. This limits the agent’s option-freedom.
Option-freedom without agency-freedom, on the other hand, may grant the agent access to a full
complement of choices. However, the difference in social status leaves the agent unprotected against
the grantor.
Sen’s capability approach to development and freedom shifts the assessment of the quality of life from
income to capability.323 This in part, resonates with a legal empowerment paradigm. He recognises the
importance of social capabilities324 and the importance of social arrangements in creating the conditions
that are conducive to individuals exercising their capabilities.325
A central theme to this approach is that development should be evaluated ‘in terms of the expansion of
substantive human freedoms’.326 These freedoms manifest ‘in the form of individual capabilities to do
the things that a person has the reason to value’.327 Individuals, for example, have a reason to value the
capability to enforce a right to which they have a claim. However, the autonomy of individuals is
inexorably tempered and constricted by their social, political and economic opportunities. Social
arrangements and institutions play a central role in promoting the freedoms of individuals. The access
321
Pettit, P (2003) p. 394.
322
Pettit, P (2003).
323
Sen, A, Development as Freedom, (1999), Oxford India Paperbacks Oxford University Press.
324
This denotes as meaningful participation in the life of the community or ‘to appear in public without shame’.
(Deneulin, S, 'Beyond Individual Freedom and Agency: Structures of Living Together in Sen’s Capability Approach
to Development' in Alkire, S, Comim, F & Qizilbash, M (eds) The Capability Approach: Concepts, Measures and
Application (April 2008) Cambridge: Cambridge University Press p. 108.
325
Deneulin, S (2008).
326
Dreze, J & Sen, AK, India: Development and participation, 2d ed, (2002) New York, USA: Oxford University
Press p. 3.
327
Sen, A (1999) p. 56.
58
to adjudicating mechanisms that individuals have and their meaningful participation in these
proceedings have a direct impact on the freedoms that they enjoy.
Sen nevertheless acknowledges that the preferences that individuals and communities value can be
socially distorted and Deneulin argues that this distortion extends to capabilities in equal measure. 328
Evans also cautions that the capabilities that individuals value are influenced by many forces, some
over which the individual has no control.329 In South Africa, for example, the poor and the marginalised
live alongside an elite (albeit from a distance) whose very existence is characterised by the ‘four c’s’330
and these communities are bombarded on a daily basis by consumerist traditions of existence in the
media and other platforms. Their preferences and capabilities, at times, are distorted by this ‘mental
conditioning’331 and may ultimately reflect the interests of those with greater economic and political
power.332 This is a dilemma that the capability approach may not be able to resolve completely.
However, the caveat serves to amplify the importance of maintaining a balance between non-limitation,
which primarily focuses on option-freedom and non-domination, which focuses on agency-freedom. In
a constitutional democracy, such as South Africa, these distortions must be evaluated against the
fundamental values that serve the common purpose of a democratic order. This common purpose is to
bring about social transformation. These distortions cannot have the effect of diluting this purpose,
endorsed by the supreme law of the country, and the ideal of individual freedom must serve alongside
the values of human dignity and equality. Woolman and Botha, having considered the conflict among
constitutional values, concluded as follows:
‘Any attempt to eradicate these conflicts and to deny the distinctive meaning of each
of these values would do real violence to the constitutional text and deny the
commitment to openness and to plurality on which it is premised.’333
328
Deneulin, S (2008).
329
Evans, P, 'Collective capabilities, culture, and Amartya Sen’s Development as Freedom', (2002), 37(2), Studies in
Comparative International Development, pp. 54–60.
330
These constitute the trappings of success, namely, the castle, car, cash and clothes.
331
Evans, P (2002) p. 58.
332
A case in point is the University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional
Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and
Others 2016 (CCT127/15) ZACC 32 (CC).
333
Woolman, S & Botha, H, 'Limitations' in Woolman, S & Bishop, M (eds) Constitutional Law Of South Africa, 2d
ed (2014) Juta p. 117.
59
3.4. EQUALITY
Albertyn and Goldblatt describe the aspirational ideal of the achievement of equality as ‘…a
constitutional imperative of the first order’.334 However, it has also been described as the most difficult
right as it very often falls short of what it promises. The following view of McLachlin335 captures this
contradiction: ‘Equality is not only the Leviathan of rights; it is also a Tantalus. It promises more than
it can deliver.’336
Albertyn and Goldblatt argue that equality as a value allows for discourse on the nature and ambitions
of social transformation, unencumbered by institutional impediments.337 This applies equally to the
values of dignity and freedom. As a right, equality offers an essential mechanism for achieving equality
and a powerful and progressive jurisprudence has developed in the country. The value of equality not
only assists in giving meaning to the substantive constitutional right to equality, but also the right of
access to procedural justice.
An understanding of equality as a value and a justiciable right requires that a distinction is drawn
between formal and substantive equality. Formal equality is described as ‘the abstract prescription of
equal treatment for all persons, regardless of their circumstances’.338 This view of equality fails to take
into consideration the social and economic differences between individuals and groups. Substantive
equality, on the other hand, ‘proceeds from the recognition that inequality not only emerges from
irrational legal distinctions, but is often more deeply rooted in social and economic cleavages between
groups in society’.339 Substantive equality thus exposes the limitation in formal equality and recognises
fundamental truth that all human beings are possessed of the same innate human dignity and are of
334
Albertyn, C & Goldblatt, B, 'Equality' in Woolman, S & Bishop, M (eds) Constitutional Law Of South Africa, 2d
ed (2014) Juta; Woolman, S & Botha, H 2014 Woolman, S & Botha, H (2014).
335
McLachlin, PC, 'Equality: The Most Difficult Right', (2001), 14(1), The Supreme Court Law Review: Osgoode’s
Annual Constitutional Cases Conference, pp. 17–26.
336
Leviathan (in biblical use) a sea monster, identified in different passages with the whale and the crocodile (e.g. Job
41, Ps. 74:14), and with the Devil (after Isa. 27:1).
A very large aquatic creature, especially a whale.
A thing that is very large or powerful, especially an organization or vehicle.
An autocratic monarch or state. (Oxford Living Dictionaries, “Leviathan”, available at: Oxford Dictionary
https://en.oxforddictionaries.com/definition/leviathan.) (accessed 10 March 2017)
Tantalus. Classical Mythology. a Phrygian king who was condemned to remain in Tartarus, chin deep in water, with
fruit-laden branches hanging above his head: whenever he tried to drink or eat, the water and fruit receded out of
reach.
(lowercase) Chiefly British. a stand or rack containing visible decanters, especially of wines or liquors, secured by a
lock. (Dictionarycom, “Tantalus”, available at: Dictionary http://www.dictionary.com/browse/tantalus?s=t.) (accessed
10 March 2017)
337
Albertyn, C & Goldblatt, B (2014).
338
Albertyn, C & Goldblatt, B (2014) p. 6.
339
Albertyn, C & Goldblatt, B (2014).
60
equal worth. This is a principle which the law is obliged to protect, not only in form, but also in
substance.
At the heart of an enquiry into equality in the legal process (procedural justice), therefore, is an acute
comprehension of the nature of the inequality, discrimination and deprivation that permeated South
African society in the past and continues to plague its present. Anything less would fail to provide an
effective remedy for the harm caused by the social and economic conditions that fashioned and
reinforced the inequalities.340 All role players, including the State, are mandated to embrace
transformative constitutionalism by balancing the restorative justice imperative with the right to
equality and equal protection and benefit of the law.
One of the reasons advanced for disconnecting the values of openness and democracy from human
dignity, equality and freedom, is their super-entrenchment in the preamble and the founding provisions
and their express codification as substantive rights. The preamble, founding provisions and sections 7,
36 and 39 constitute important waymarks in the interpretation of the Constitution and will be considered
below.
3.5. THE WAYMARKS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH

AFRICA
The preamble
The preamble is not merely a rhetorical statement, but an ineluctable constitutional waymark in the
interpretation of the Bill of Rights. The following dictum of the Constitutional Court delivered by Sachs
J captures this view eloquently:
‘The Preamble in particular should not be dismissed as a mere aspirational and throat-
clearing exercise of little interpretive value. It connects up, reinforces and underlies all
of the text that follows. It helps to establish the basic design of the Constitution and
indicate its fundamental purposes.’341
The preamble makes express reference to two forms of justice, namely ‘social justice’ and procedural
justice which is embodied in the phrase, ‘…every citizen is equally protected by the law …’. Social
340
See President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 2005 (CCT20/04)
ZACC 5 (CC).
341
S v Mhlungu and Others 1995 (CCT25/94) ZACC 4.
61
justice and procedural justice are to be achieved through the adherence to democratic values and
fundamental human rights and will be measured against its capacity to ‘heal the divisions of the past’
and ‘[i]mprove the quality of life of all citizens’. The preamble thus directs the process and identifies
the purpose of the transformation that the new democratic order demands and the Bill of Rights is held
up as the cornerstone of that transformation.
In the preamble, the Constitution is declared supreme for the purpose of ‘establish[ing] a society based
on democratic values, social justice and fundamental human rights’ in which ‘every citizen is equally
protected by the law’ in order to ‘improve the quality of life of all citizens and free the potential of each
person’. This reflects a characteristic of transformative constitutionalism aimed at overcoming the past
discrimination and disadvantage while simultaneously, extending the right to equality and equal
protection to all South African citizens. Klare describes transformative constitutionalism as follows:
‘... [Transformative constitutionalism] connotes an enterprise of inducing large-scale

social change through nonviolent political processes grounded in law ... a
transformation vast enough to be inadequately captured by the phrase "reform," but
something short of or different from "revolution" in any traditional sense of the word.
In the background is the idea of a highly egalitarian, caring, multicultural community,
governed through participatory, democratic processes in both the polity and large
portions of what we now call the "private sphere"’.342
The declaration of the supremacy of the Constitution thus signalled a paradigm shift away from what
has been labelled a ‘culture of arbitrary authority’ and blind obedience to a ‘culture of justification’ and
accountability, endeavouring to create a society built on persuasion rather than intimidation.343 The
preamble, therefore, embraces specific features of a legal empowerment agenda which are aimed at
capacitating communities to claim the protection of the law and legal systems in order to transform their
social and economic situations.
The founding provisions
In spite of the seemingly inconsistent interpretation of the role of section 1 of the Constitution by the
Constitutional court,344 it is argued that a descriptive understanding of this section indicates that aspects
342
Klare, KE, 'Legal Culture and Transformative Constitutionalism', (1998), 14, South African Journal on Human
Rights, pp. 146–188.
343
Mureinik, E 1994 Mureinik, E (1994).
344
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO)
and Others 2004 (CCT03/04) ZACC 10 (CC); President of the Republic of South Africa and Another v Modderklip
62
of subsequent provisions in the Constitution that are of particular foundational importance are ‘super-
entrenched’ in this section.345 Section 1 of the Constitution places a premium on the founding values
of equality and human dignity, rights and freedoms, with particular emphasis on non-racialism and non-
sexism.346 It further ‘super-entrenches’ the supremacy of the Constitution and the rule of law. The rule
of law dictates that the State provides the necessary mechanisms to enable citizens to resolve disputes
that arise between them and the State and between citizens themselves.347 The corollary to this
obligation is the right of every person to have access to the courts and other dispute resolution
mechanisms. Respecting and upholding the rule of law is important to ensure the existence of a
successful democratic order as it is meant to protect basic individual rights. However, a positivist
approach to the application of the rule of law has the potential to produce unjust results and require
safeguards, lest it merely results in formal equality348 at the expense of substantive equality.349 Having
meaningful access to these adjudicating mechanisms, in the face of various barriers, gives rise to the
right to legal assistance, which encompasses a range of services, including paralegal services, as
indicated in Figure 1.350
Section 39
The advent of our constitutional democratic order introduced a revolution in statutory interpretation.
The interpretation clause of the Constitution sets out the standard against which all laws are to be
interpreted.351 It uses peremptory language when it enjoins the courts, tribunals and other fora to
Boerdery (Pty) Ltd (2005); United Democratic Movement v President of the Republic of South Africa and Others
(African Christian Democratic Party and Others Intervening) 2002 (CCT23/02) ZACC 21.
345
Fowkes, J, 'Founding Provisions' in Woolman, S & Bishop, M (eds) Constitutional Law Of South Africa, 2nd ed
(2014) Juta p. 21.
346
‘The Republic of South Africa is one, sovereign, democratic state founded on the following values:
Human dignity, the achievement of equality and the advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and the rule of law.
Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness.’
347
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (2005).
348
‘sameness of treatment’ regardless of the circumstances De Waal, J, Currie, I & Erasmus, G, The Bill of Rights
Handbook, 4th ed, (2001) Juta & Co..
349
‘ensuring equality of outcome’ ( President of the Republic of South Africa and Another v Modderklip Boerdery
(Pty) Ltd (2005).)
350
Page 42.
351
Section 39(1)
(a) When interpreting the Bill of Rights, a court, tribunal or forum—
must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
must consider international law; and
(b) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal
or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by
common law, customary law or legislation, to the extent that they are consistent with the Bill.
63
‘promote the values that underlie an open and democratic society based on human dignity, equality and
freedom’352 and to ‘promote the spirit, purport and objects of the Bill of Rights’.353 The interpretation
clause specifically recognises the rights and freedoms conferred by other sources of law, in particular,
common law, customary law and legislation. However, it declares all sources of law subject to the
Constitution.354 The Constitutional Court therefore held that ‘[a]ll statutes must be interpreted through
the prism of the Bill of Rights.’355 The principle of reading all enacted law in conformity with the
Constitution has thus been codified in South African jurisprudence.
Moreover, adjudicating fora are legally obliged to consider international law356 and permitted to
consider foreign law.357 The preamble to the International Covenant on Civil and Political Rights
(ICCPR), for example, recognises the ‘inherent dignity and the equal and inalienable rights of all
members of the human family [a]s the foundation of freedom, justice and peace in the world’. The
ICCPR further recognises, ‘in accordance with the Universal Declaration of Human Rights, [that] the
ideal of free human beings enjoying civil and political freedom and freedom from fear and want can
only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as
well as his economic, social and cultural rights’.
The preamble to the Charter of the Organisation of African Unity, the predecessor of the Constitutive
Act of the African Union, echoes similar principles of ‘freedom, equality, justice and dignity [as the]
essential objectives for the achievement of the legitimate aspirations of the African peoples’.358 One of
the objectives of the African Union stated in the Constitutive Act is to ‘promote and protect human and
peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights (ACHPR) and
other relevant human rights instrument.359 The Constitutive Act further expressly includes the
principles of ‘promotion of gender equality’,360 ‘respect for democratic principles, human rights, the
rule of law and good governance’,361 ‘promotion of social justice’ and ‘respect for the sanctity of human
life’.362
352
Section 39(1)(a).
353
Section 39(2) .
354
Section 39(3).
355
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In Re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (CCT1/00) ZACC 12,
para 21.
356
Section 39(1)(b).
357
Section 39(1)(c).
358
Organization Of African Unity (OAU), Charter of the Organisation of African Unity, 479 U.N.T.S. 39 (1963).
359
Article 3(h).
360
Article 4(l).
361
Article 4(m).
362
Article 4(o).
64
The drafters of the Constitution deemed it appropriate to incorporate these principles into our domestic
legal order, thus giving binding effect to these international and regional standards. The preambles of
regional instruments such as the European Convention on Human Rights363 and the American
Convention on Human Rights364 contain similar core values, emphasising ‘personal liberty, social
justice’ and ‘fundamental human rights’365 as well as ‘democratic order, fundamental freedoms’ and
‘common observance of human rights’.366 Its regional counterpart, the preamble to the African Charter
on Human and Peoples’ Rights similarly reaffirms the commitment of State Parties to ‘the principles of
human and peoples’ rights and freedoms contained in these declarations, conventions and other
instrument(s) adopted by the Organization of African Unity, the Movement of Non-Aligned Countries
and the United Nations’.367
However, inasmuch as constitutional interpretation may involve an analysis of the written text to
ascertain its meaning, it does not strictly conform to the conventional rules of statutory interpretation.
Du Plessis argues that ‘[c]onstitutional interpretation … activates – and gives content to – the values
that underlie and pervade a democratic, constitutional state (Rechtsstaat)’.368 In fact, human rights
instruments, such as the Constitution, allow for the convergence of natural and positive law. This, in
the author’s view, invites a reading of the Bill of Rights, unencumbered by the institutional constraints
imposed by the conventional canons of statutory interpretation, yet guided by the text of the ‘enacted
Constitution–in-writing’.369 He further states that the ‘most distinctive and consequential feature [of
constitutional interpretation] as an interpretive endeavour is its ability to underwrite constitutional
supremacy, warding off unconstitutional action, halting the abuse of power or providing redress for the
adverse consequences of unconstitutional conduct.’370 Constitutional Court jurisprudence tells us what
the Constitution demands in respect of transformation:
‘Final Constitution does not simply ask us to react to, and to reverse, past indignities.
It demands that we transform our society into one that will ultimately recognise the
intrinsic worth of each individual.’
363
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, ETS 5 (1950).
364
Organisation of American States (OAS), American Convention on Human Rights “Pact of San Jose”, Costa Rica,
Treaty Doc. No. 95-21,1144 U.N.T.S.123, O.A.S.T.S. No. 36, 9 I.L.M. 99 (1970).
365
American Convention on Human Rights “Pact of San Jose”(1970)
366
European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols
Nos. 11 and 14 (1950).
367
Preamble to the African Charter of Human and Peoples’ Rights.
368
Du Plessis, L, 'Interpretation' in Woolman, S & Bishop, M (eds) Constitutional Law of South Africa , 2nd ed (2014)
Juta p. 2.
369
Du Plessis, L (2014) p. 107.
370
Du Plessis, L (2014) p. 2.
65
Simply put, the Constitution must be interpreted in a manner that ensures access to justice in a country
that is still grappling with transitional justice. Access to justice is at the heart of the social
transformation that the new democratic order demands and the democratic values of dignity, equality
and freedom are instrumental in that transformation.
Section 7
Most of the jurisprudence on section 7 is concentrated on section 7(3) which refers to the limitation
clause.371 Although section 7 is not an interpretation clause to the same extent as section 39, the latter
is not the only source of interpretation in the Constitution. Section 7, as an interpretive waymark,
cements the authority of the Bill of Rights as the ‘cornerstone of democracy’ and re-affirms the
democratic values of the Constitution, namely, human dignity, equality and freedom.372 Section 7(2)
further directs the State in the manner in which it is to deliver on the promise of the substantive rights
contained in the Bill of Rights. Du Plessis cautions that these two provisions would remain intangible
aspirations if they are not given concrete expression through interpretation.373 He further expresses the
opinion that,
‘lofty constitutional values and ideals will come to naught if they are not invoked to
shepherd and shape the way in which authorised interpreters of the Final Constitution
(and the Bill of Rights) give effect to the provisions of the country’s supreme law’.374
Section 7(2) reads, ‘… the state must respect, protect, promote and fulfil the rights in the Bill of
Rights’.375 This section uses peremptory language and places the obligations of the State in a
hierarchical order. The Constitution first places a negative obligation on the State to refrain from undue
interference with the rights of individuals. This in essence means that the state itself must refrain from
limiting or depriving the individual from existing rights, whether by design or by default. The
Constitution further places a positive obligation on the State to protect the individual from undue
interference with the exercise and enjoyment of their rights. The State, thus, has a duty to enhance the
enjoyment of existing rights and to assist those who do not have access to the rights to gain access.
Furthermore, the State has a constitutional obligation to raise awareness among its citizens and inform
them of their rights, thus promoting the rights in the Bill of Rights. Finally, the State has a duty to adopt
371
Du Plessis, L (2014) p. 120.
372
Section 7(1).
373
Du Plessis, L (2014).
374
375
Own emphasis added.
66
appropriate legislative administrative, budgetary, judicial, promotional and other measures to provide
access for those who do not currently enjoy these rights.376 In so doing, the State would be complying
with its positive obligation to fulfil the rights in the Bill of Rights.
Case law favours an interpretation of section 7(2) that not only places a negative obligation on the State
to refrain from limiting the rights contained in the Bill of Rights, but imposes a positive obligation on
the State to enhance and give effect to their enjoyment.377 In President of the Republic of South Africa
v Modderklip Boerdery (Pty) Ltd the Constitutional Court specifically addressed section 34 of the
Constitution and held that the State has an obligation to provide an effective remedy for disputes and
ensure the enforcement thereof.378 The State therefore has a positive obligation to provide the necessary
statutory framework, human resources, institutions and infrastructure to ensure access to this right for
those who do not currently enjoy access. This includes access to legal assistance, at the expense of the
State, if the interest of justice so requires. The entrenchment of the triumvirate of values in section 7
confirms that an examination of the extent of the obligation of the State to ‘respect, protect, promote
and fulfil the rights in the Bill of Rights’ is a value-laden endeavour. The purpose of such an exercise
must be to provide the individual with the best possible protection under the Constitution.
Section 36
The limitation clause379 in the Constitution provides the apparatus through which a frank appraisal of
competing values and interests can occur and through which the tensions between democracy and rights
can be reconciled.380 Section 36 informs us that a limitation of a fundamental right will not pass
constitutional muster unless it is ‘reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom’. This phrase does not only bear the hallmark of constitutional
interpretation, but it also burdens this analysis with interpretive challenges. Woolman and Botha argue
that the phrase is not only framed very broadly but that it reproduces the very tensions that it is intended
to settle.381 Tensions exist between democracy and rights, equality and freedom, equal treatment and
diversity and social justice and individual freedom.382 These authors claim that the approach of the
Constitutional Court in respect of the interpretation of rights and the analysis of limitations ‘lacks
376
377
S v Baloyi and Others 1999 (CCT29/99) ZACC 19; Government of the Republic of South Africa and Others v
Grootboom and Others 2000 (CCT11/00) ZACC 19; Carmichele v Minister of Safety and Security 2001 (CCT48/00)
ZACC 22 (CC).
378
379
Section 36 Constitution of the Republic of South Africa, 1996.
380
Woolman, S & Botha, H (2014).
381
382
Woolman, S & Botha, H (2014) p. 67.
67
analytical rigour’.383 They emphasise the importance of the formation of a framework for a limitation
analysis as it fortifies the law-making process in a constitutional democracy. Legislation and conduct
can therefore be assessed against the constitutional mandate to create an open and democratic society
based upon human dignity, equality and freedom. A framework for a limitation analysis should thus
give substance to this mandate and require an exposition of the collaboration between dignity and
democracy.384
Section 39 confirms that constitutional interpretation is a value-laden endeavour. This informs and
encourages a two stage approach to limitation analysis for a number of reasons.385 Firstly, a value-laden
approach to the interpretation of the protected right eliminates conduct that is undeserving of the
protection of the Constitution.386 Secondly, a value-laden screening during stage one of the limitation
analysis allows only authentic and serious violations through to stage two of the enquiry.387 Thirdly, a
value-laden approach is in harmony with the idea that a ‘unity of values’ inspires both stages of the
limitation analysis.388 Stage one involves the determination of the nature and scope of the right followed
by an enquiry into whether a law or conduct infringes the right. Stage two involves the justification for
the infringement. Both stages are informed by the five foundational values of the Constitution.
Constitutional interpretation in general and a limitation analysis in particular is thus inescapably
influenced by the values that animate the democratic order in South Africa.
All of the above demanded a shift in jurisprudential theory389 as the courts have now been declared the
custodians of the Constitution and are clothed with the authority to subject the conduct of the State and
individuals to constitutional scrutiny, thus taking the nation a step closer to actualising substantive
justice. The aforementioned values, therefore, are foundational to our democratic and constitutional
order and pivotal to developing an egalitarian society. The Constitution has thus become the grundnorm
of our legal system and constitutes the social contract between citizens and the State.
383
According to these authors the Constitutional Court provides insufficient insight or guidance. The Court failed to
provide detail of the analytical process at each stage and does not explain the reasons for allocating particular tasks to
the various stages of the analysis.
384
385
Woolman S & Botha H argue that the ‘amorphous’ one-stage enquiry applied by the Constitutional Court in some
instances ‘compromised the analytical rigour’ of the two-stage approach’ (2014) p. 42.
386
Freedom of speech, for example is protected under the Constitution. However, when it amounts to hate speech it does
not merit protection.
387
Woolman, S & Botha, H (2014). argue that this allows the court to adopt a relatively rigorous approach with
regards to the justification for the infringement.
388
389
Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer Port Elizabeth
Prison and Others 1995 (CCT19/94) ZACC 7 (CC); Rapatsa, M, 'Transformative Constitutionalism in South Africa:
20 Years of Democracy', (2014), 5(27), Mediterranean Journal of Social Sciences, pp. 887–895. p. 891.
68
However, these values do not necessarily manifest in the attitudes of the citizens of the country. The
AJCPR Baseline Survey shows that the attitudes of many of the respondents in the study are in conflict
with the values and rights contained in the Constitution.390 The results reflect an attitude of
discrimination among most of the respondents towards vulnerable communities such as lesbian and gay
communities391 and women.392 There is also still substantial support for the death penalty393 and for
government censorship of publications.394 Moreover, the results of the survey show a lack of awareness
of the Constitution and the Bill of Rights.395 Respondents also had an extremely low level of awareness
of key human rights-related legislation such as the Promotion of Equality and Prevention of Unfair
Discrimination Act.396
The results of the AJCPR Baseline Survey reveal the extent of the challenge facing the country in their
efforts to entrench a culture of human rights in our society and reflect the gap between the law and the
people. This is a gap that will not be completely bridged without the aid of the community-based
paralegal sector.397 This much had been acknowledged by the Deputy Minister of Justice and
Correctional Services when he stated that, ‘[g]overnment cannot play this role in isolation and civil
society organisations in South Africa may achieve greater success in promoting human rights awareness
than government is able to achieve. Partnership in this regard is vital’.398
3.6. CONCLUSION
The Constitution informs us that the content, scope, application and limitations of the rights that are
enshrined in the Bill of Rights should be determined through the prism of the five fundamental values
that animate the new democratic order in South Africa. However, the values of human dignity, equality
and freedom are distinguished from openness and democracy. This triumvirate of values are regarded
as innate to all human beings and their recognition is therefore not dependent upon an express
390
Kimmie, Z & O’Sullivan, G, Report of the AJPCR Baseline Survey on the Awareness of, Attitude and Access to
Constitutional Rights, (2015) South Africa: Foundation for Human Rights & Department of Justice and Constitutional
Development.
391
Most respondents (63%) indicated that homosexuals should not have the same rights as other citizens. (Kimmie, Z
& O’Sullivan, G (2015) p. 15.
392
An overwhelming majority (73%) indicated that married women cannot refuse to have sex. (Kimmie, Z &
O’Sullivan, G (2015).
393
Forty-three percent (43%) supported the death penalty. (Kimmie, Z & O’Sullivan, G (2015).
394
The majority (55%) agreed that government can decide what information newspapers print. (Kimmie, Z &
O’Sullivan, G (2015).
395
Less than ten percent (10%) of the respondents had read the Constitution or had it read to them and forty six
percent (46%) claimed to have a basic awareness of them. (Kimmie, Z & O’Sullivan, G (2015) p. 11.
396
Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000..
Only fourteen percent (14%) of the respondents displayed an awareness of this legislation (Kimmie, Z &
O’Sullivan, G (2015) p. 12.
397
See Chapter 9 for a discussion on the community-based paralegal in South Africa.
398
Kimmie, Z & O’Sullivan, G (2015) p. 3.
69
codification as rights. These three values, to a greater or lesser extent, permeate every right in the Bill
of Rights due to the interrelatedness and interdependence of human rights.
Five different aspects of human dignity emerge from jurisprudence, namely, ‘the individual as an end-
in-herself’, ‘equal concern and respect’, ‘self-actualisation’, ‘self-governance’ and ‘collective
responsibility for the material conditions of agency’.399 Human dignity thus denotes more than a
manifestation of citizen entitlements and corresponding State responsibilities. It requires a shared
recognition of a common responsibility for the ‘material conditions of agency’.400
Debates on the value of freedom generated three schools of thought categorised as freedom as non-
limitation, non-domination and non-interference. It is suggested that social freedom is best understood
as option-freedom or agency-freedom. Vulnerabilities impact on the freedom of choice of the agent,
therefore, one form of freedom without the other, handicaps the agent. This forms the foundation for
the capability approach to freedom proposed by Sen.
Equality as an aspirational ideal is described as ‘a constitutional imperative of the first order’. The
value of equality does not only give meaning to the substantive constitutional right to equality, but also
the right of access to procedural justice. The substantive right of equality offers an essential mechanism
for achieving equality. At the heart of an enquiry into equality in the legal process (procedural justice),
lies an understanding of the nature of the inequality, discrimination, and deprivation that permeated
South African society in the past and continues to plague its present.
The values of human dignity, equality and freedom are entrenched in distinct waymarks in the
Constitution. The preamble and founding provisions of the Constitution super-entrench these values.
The preamble declares the Constitution supreme and codifies a transformation agenda that reflects
characteristics of transformative constitutionalism and embraces a legal empowerment agenda. The
founding provisions, in addition, codify South Africa’s commitment to the rule of law and place a
premium on the triumvirate of values that informs the rule of law.
The advent of a new democratic order ushered in new national and international standards in terms of
which laws in the country are to be interpreted. Section 39 enjoins courts and tribunals to promote the
values of the Constitution and the spirit, purport and objects of the Bill of Rights. Section 7 cements
the authority of the Bill of Rights and imposes a negative obligation on the State to refrain from undue
399
Woolman, S (2006) p. 6–17.
400
Woolman, S (2006) p. 14–17.
70
interference with the fundamental rights of individuals. It also imposes a positive obligation on the
State to protect the individual from undue interference with the exercise and enjoyment of their
fundamental rights, to inform citizens of their rights and to adopt measures to provide access to those
who do not currently enjoy those rights. The triumvirate of values informs an examination of the extent
the State’s obligation under section 7. The limitation clause provides the apparatus for a frank appraisal
of competing values and interests. An enquiry into the limitation of any right but particularly the right
to procedural justice is thus inescapably influenced by the values that animate the democratic order in
South Africa.
However, the foundational values do not necessarily manifest in the attitudes of the citizens of the
country. Preliminary research shows that the South African public has not entirely embraced the values
and attitudes entrenched in the Constitution. This is in part as a result of the gap between the law and
the people. The State has acknowledged that it will not be able to narrow this gap without the aid of
civil society. Community-based paralegals, therefore, have a key role to play in making access to justice
in civil matters a reality for those who do not currently enjoy access.
Having examined how the constitutional values shape the new democratic order in South Africa, the
focus turns to the substantive legal framework of access to procedural justice in civil matters. The
domestic legal order is influenced by an international and regional human rights framework. The right
of access to procedural justice in civil matters under treaty law will therefore be examined in
Chapter 4.
71
Part III
The Substantive Legal Framework of Access to Procedural Justice in Civil Matters in

South Africa
72
CHAPTER 4
INTERNATIONAL LAW AND THE RIGHT OF ACCESS TO PROCEDURAL JUSTICE IN

CIVIL MATTERS IN SOUTH AFRICA
4.1. INTRODUCTION
Social contract theorists contend that citizens surrender their natural right to self-help in return for the
promise by the state to provide a peaceful and fair alternative to all without discrimination.401 In the
absence of a well-functioning civil justice system, which is a fundamental component of the rule of law,
citizens have limited options. Many simply abandon any attempt to resolve the dispute or resort to
vigilantism to settle the conflict.402
The right of access to the courts is a pivotal precept of the right to procedural justice. This right
constitutes the fulcrum for the protections and guarantees contained in the South African Bill of Rights.
It is regarded as the ‘bulwark against vigilantism’ and the ‘guarantee against partiality’.403 In the
absence of the right of access to procedural justice, the constitutional protections and guarantees will
be worthless.
South Africa has adopted a human rights-based approach to access to justice. The domestic legal regime
therefore, functions in collaboration with a global and regional human rights framework in which the
innate dignity and equal and immutable rights of all global citizens form the foundation for justice. This
human rights-based approach to access to justice yields guarantees of equality before the law and equal
access to the law as well as the right to a fair hearing. States comply with their obligation under the
social contract by first, codifying the right to procedural justice either in their constitutions or other
national law and setting up an institutional framework to give effect to it. These laws would therefore
expressly guarantee the right of access to the courts and other dispute resolution fora and the right to
legal representation. The drafters of the South African Constitution have deemed it wise to distinguish
between criminal and civil matters in respect of the right to access to the courts. However,
internationally, this right is contained in the right to a fair trial, which applies to both a suit at law as
401
Hobbes, T, De Cive, (1949) New York, USA: Appleton-Century-Crofts; Locke, J, Second Treatise of Government,
reprint ed, (1980), Macpherson, CB (ed.) , HPC Classics Indianapolis, USA: Hackett Publishing Company; Rousseau,
J-J & Gay, DA, On The Social Contract, (1987) Indianapolis, USA: Hackett Publishing Company; Rawls, J, A theory
of justice, revised ed, (1971) Cambridge, USA: Harvard University Press; Gauthier, DP, Morals by Agreement, 5th ed,
(2006) Oxford, UK: Clarendon Press.
402
Ponce, A, Rule of Law Index, (2015) Washington D.C., USA.
403
Lesapo v North West Agricultural Bank and Another 1999 (CCT23/99) ZACC 16.
73
well as criminal matters.404 The international and global human rights framework exercises an influence
on the South African legal order and warrants further investigation. Therefore, the interrelationship
between international and domestic law will first be examined, followed by a consideration of the
relevant articles in the international and regional human rights instruments signed, ratified or acceded
and deposited by South Africa.
4.2. THE INTER-RELATIONSHIP BETWEEN DOMESTIC AND INTERNATIONAL

LAW
The delicate act of balancing sovereignty and international law in South Africa has received much
attention in the media and the courts in recent times, both nationally and internationally405 as individuals
and human rights organisations have increasingly exercised the right of access to justice by approaching
the South African courts to enforce and clarify the State’s legal obligations under the Bill of Rights
since the enactment of the Constitution.406 South Africa has signed, ratified or acceded a number of
global and regional human rights instruments after the post-apartheid government came into power in
1994. However, the act of ratification or accession of an international agreement does not automatically
give legal status to that agreement under South African law. This much is evident from key court
decisions, the international, regional and sub-regional instruments themselves and the Constitution of
the Republic of South Africa. The international human rights framework nevertheless exercises
influence in the domestic legal arena. The extent of that influence requires further examination.
404
Article 14 of the International Covenant on Civil and Political Rights.
UN Human Rights Committee (HRC), General Comment No. 13: Article 14 (Administration of Justice): Equality
before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, (1984) ;
UN Human Rights Committee (HRC), General comment no. 32: Article 14: Right to equality before courts and
tribunals and to fair trial, (2007) CCPR/C/GC/32.
405
“ICC accuses UN of failing to act against countries refusing to arrest Bashir”, (2016), available at: News24
http://www.news24.com/Africa/News/icc-accuses-un-of-failing-to-act-against-counties-refusing-to-arrest-bashir-
20161214. (accessed 2 March 2017)
“Botswana reaffirms support for ICC, ‘regrets’ SA decision”, (2016), available at: News24
http://www.news24.com/Africa/News/botswana-reaffirms-support-for-icc-regrets-sa-decision-20161026. (accessed 2
March 2017)
Chabalala, J, “SA under obligation to arrest Al Bashir - SCA”, (2016), available at: News24
http://www.news24.com/SouthAfrica/News/sa-under-obligation-to-arrest-al-bashir-sca-20160315. (accessed 2 March
2016)
“Government has a duty to arrest Bashir: SALC”, (2016), available at: SABC News
http://www.sabc.co.za/news/a/657deb004c0a4458b519bff0bca466af/SouthundefinedAfricanundefinedgovernmentund
efinedhasundefinedaundefineddutyundefinedtoundefinedarrestundefinedBashir:SALC-20161503. (accessed 2 March
2017)
Hunter, Q, “ICC demands SA explain al-Bashir exit”, (2015), available at: Mail & Guardian
https://mg.co.za/article/2015-09-07-icc-demands-sa-explain-al-bashir-exit. (acessed 2 March 2017)
406
Wilson, Stuart Dugard, J, 'Constitutional Jurisprudence' in Langford, M et al (eds) Socio-Economic Rights in South
Africa (2012) Cambridge: Cambridge University Press.
74
The Vienna Convention on the Law of Treaties407 declares every treaty in force binding upon the States
Parties and enjoins them to perform their duties in respect of these treaties in good faith.408 It further
precludes States Parties from invoking domestic law as justification for non-compliance with its
obligation under the treaty. This in essence implies that, once a State Party has consented to be bound
by a treaty, whether by ratification, acceptance, approval 409 or accession,410 and it has communicated
that consent through exchange between states, deposit with the depository or notification to the
depository, if so agreed,411 the maxim pacta sunt servanda should apply. However, the implementation
of treaty law in a sovereign state is not that simple.
The Report on the Implementation of International Human Rights Treaties in Domestic law adopted by
the Venice Commission412 highlights four legal factors that impact on the implementation of
international human rights treaties under domestic law.413 This Report and, as a result, these factors,
have relevance for South Africa as human rights treaties in Africa, like Europe and Latin-America, have
a regional judicial system of control. Due to the interrelated nature of these factors, this study will
consider the implementation of international law and its application in South Africa in brief by first,
addressing the conceptualisation of the relationship between international human rights law and
domestic law in South Africa characterised by the monist-dualist dichotomy, secondly, examining
relevant provisions of international and regional human rights instruments and, thirdly, examining the
relevant provisions of the Constitution of the Republic as interpreted through judicial precedent in South
Africa.
4.2.1. The monist-dualist dichotomy
Traditionally, two theories dominated the debate on the conceptualisation of the relationship between
international and domestic law, namely, monism and dualism. ‘Pure’ monism suggests that national
and international law are part of one single, coherent system, with international law at the apex,
407
United Nations, Vienna Convention on the Law of Treaties, treaty ser ed, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969).
408
Article 26.
409
Article 14.
410
Article 15.
411
Article 16(a)-(c).
412
European Commission for Democracy through Law, Report on the implementation of international human rights
treaties in domestic law and the role of courts, (2014) Rome, Italy: Council of Europe.
413
These are:
- the conceptualisation of the relationship between international and domestic orders
- the status of treaties in the domestic legal order and their place in the hierarchy of norms
- the direct and indirect effect and the interpretation of conformity clauses in the domestic constitutions
- enabling legislation (European Commission for Democracy through Law (2014) p. 6.).
75
validating and invalidating domestic legal systems. 414 Therefore, in the event of conflict between
domestic and international law, international law prevails.
Dualism, on the other hand, suggests that international and domestic legal systems exist as two distinct
legal orders.415 In terms of this regime, international law requires incorporation into domestic law in
order to have binding effect on domestic authorities. International law, for that reason, does not have
direct application within the domestic order but has to be transformed into national law through the
enactment of a statute or other source of national law. State Parties adhering to the dualist approach
incorporate international human rights treaties into domestic law mainly through transformation,416
adaptation417 and adoption.418
Killander claims that practitioners of the law in civil law Africa do not often apply international human
rights law in spite of the monist constitutional framework, whereas the jurisprudence in dualist common
law countries on the continent shows extensive reference to international human rights law.419 The
direct application of the international human rights treaties in domestic legal regimes on the African
continent is also rare because the same obligations might appear in most of the national human rights
instruments, for example, in the Constitution of the Republic of South Africa.420 This direct application
within a constitutional democracy such as South Africa raises profound questions related to the doctrine
of the separation of powers,421 the principle of legality422 and democracy. Upon considering these
questions, the query into the direct application of international agreements has often been conflated with
414
Kelsen, H, Reine Rechtslehre, (1934) Leipzig, Germany: Franz Deuticke.
415
Triepel, H, Völkerrecht und landesrecht, (1899) Leipzig, Germany: C.L. Hirschfeld. as discussed in Gaja, G,
'Positivism and Dualism in Dionisio Anzilotti', (1992), 3, European Journal of International Law, pp. 123–138.
Anzilotti, D, Corso di diritto internazionale (ad uso degli studenti dell’Università di Roma), 3d ed, (1928) Rome,
Italy: Athenaeum. Discussed in Crivellaro, J, “How did Anzilotti’s jurisprudential conception influence the
jurisprudence of the Permanent Court of International Justice”, (2011), available at: Jura Genrium
http://www.juragentium.org/topics/thil/en/crivella.htm. (accessed 3 May 2015)
416
The process of incorporating the text of the international human rights treaty literally into the statute or other
source of domestic law.
417
The process of incorporating the international human rights treaty into national law subject to substantive
modifications .
418
The use of provisions of international treaties, or other sources of international law in the case law of national
courts without transformation or adaptation.
419
Killander, M & Adjolohoun, H, International law and domestic human rights litigation in Africa, (2010),
Killander, M (ed.) Pretoria, South Africa: Pretoria University Law Press.
420
Killander, M & Adjolohoun, H (2010).
421
‘The doctrine of separation of powers means ordinarily that if one of the three spheres of government is responsible
for the enactment of rules of law, that body shall not also be charged with their execution or with judicial decision
about them. The same will be said of the executive authority, it is not supposed to enact law or to administer justice
and the judicial authority should not enact or execute laws.’ (Mojapelo, JPM, 'The doctrine of separation of powers (A
South African perspective)', (2013), 26(1), Advocate, pp. 37–46. p. 37.).
422
The principle of legality is regarded as part of the rule of law and indicates, within the context of public
administration, that ‘the exercise of public power is only legitimate where lawful’ Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and Others 1998 (CCT7/98) ZACC 17, para 56.
76
the incorporation of international agreements into the domestic legal order. The distinction between
international and domestic law has particular relevance for South Africa as the balance between the
sovereignty of the state and its international and regional obligations was the focal point of recent
constitutional litigation in the country.423
South Africa is considered to be a common law country and the conceptualisation of the
interrelationship between customary international law and domestic law on the one hand, and treaty law
and domestic law on the other, reflects a blend of monism and dualism. Most importantly, the
Constitutional Court in South Africa has ruled that the Constitution of the Republic should be the
starting point for determining the inter-relationship between international law and domestic law.424 A
very brief examination of the relevant provisions of key international and regional human rights
instruments nevertheless provides further insight.
4.2.2. International Human Rights Instruments
South Africa has signed, ratified or acceded and deposited a range of international Charters, Covenants,
Conventions and Protocols.425 In so doing, the State has committed itself to be bound by the principles
contained therein and to adhere to the obligations imposed by these instruments. However, the
international obligation resting on the State does not amount to an automatic incorporation of the
Principles into domestic law. An examination of the wording of the relevant provisions contained in
these instruments confirms that additional action, in the form of incorporation into domestic law, may
be required. These instruments require State Parties to ‘[under]take effective [legislative and other
administrative] … measures’426 or ‘adopt’,427 ‘undertake to adopt’,428 or ‘incorporate and adopt’429
measures to give effect to the rights and obligations contained the respective instruments. It is evident
that the acts of ratification or accession and deposit do not automatically give binding effect to the
423
Glenister v President of the Republic of South Africa and Others 2011 (CCT48/10) ZACC 6; Minister of Justice
and Constitutional Development and Others v Southern African Litigation Centre and Others 2016 (867/15) ZASCA
17.
424
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre
and Another 2014 (CCT02/04) ZACC 30, para 22.
425
See para 4.3 below.
426
Article 2.1(c), 2.1(d) and 6 of the United Nations General Assembly, International convention on the elimination of
all forms of racial discrimination, 4 January 1969, GA Res. 2106(XX), 660 U.N.T.S. 195 (1969).
Article 2.1 of the Danelius, H, 'Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment', (2008), 1645(85), UN Audiovisual Library of International Law, pp. 1–4.
Principle 3(a) of the Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, (2013)
427
Article 5.1 of the United Nations General Assembly, Convention on the Rights of the Child, GA Res. 44/25 (1990).
Preamble to the International Covenant on Civil and Political Rights (1996)
Article 1 of the African Charter on Human and Peoples’ Rights (1982).
428
Article 6(1) SADC, Treaty of the Southern African Development Community, 32 ILM 116, 5 AJICL 418 (1993).
429
Principle 2 of the Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, (2013)
77
principles of the relevant international human rights instrument under domestic law. At best, it creates
an obligation by the state on an international level, with the consequence of sanction from the member
states in the event of a breach of that obligation. A further act of domestication of international law has
to occur for citizens to claim protection within South Africa’s borders. This suggests a dualistic
relationship between domestic law in South Africa and international law. A brief examination of the
relevant provisions of the supreme law of the land, the Constitution of the Republic of South Africa,
1996 and judicial precedent provides further insight.
4.2.3. The Constitution of the Republic of South Africa, 1996
South Africa’s domestic law determines how an international obligation functions within its borders.
The starting point for that enquiry is the Constitution of the Republic which enjoys supremacy in the
national hierarchy of norms.430 International law enjoys special significance in the South African legal
regime.431 For that reason, its incorporation into the domestic legal order is governed by the Constitution
of the Republic and the manner of incorporation reflects a blend of monism and dualism.432
Customary international law has been incorporated into the domestic legal order in the monist tradition
through an incorporation clause. Section 232 of the Constitution confers the status of national law upon
customary international law.433 It therefore has direct application within the domestic domain, barring
conflict with an Act of Parliament or the Constitution. In the event of conflict between customary
international law and domestic law, the departure from the direct application of customary international
law in South Africa is provided for within the confines of South Africa’s obligations and commitment
in respect of human rights, nationally and internationally.434
Treaty law, on the other hand, is incorporated into the domestic legal order in the dualist tradition.
Section 231 of the Constitution prescribes a three step process, each with distinct legal
consequences.435 The first step, negotiating and signing an international agreement, merely signals
430
Du Preez, M & Gevers, C, 'Balancing competing obligations: The Rome Statute and AU decisions', (2011), 225,
ISS Paper, pp. 1–30.
431
In National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre
and Another (2014), para 96. Ngcobo J in referred, in particular, to sections 37(4)(b)(i) , 39(1)(b) and 233 of the
Constitution and held that ‘these provisions of our Constitution demonstrate that international law has a special place
in our law which is carefully defined by the Constitution’ and that ‘particularly those [international agreements]
dealing with human rights, may be used as interpretive tools to evaluate and understand our Bill of Rights.’.
432
Du Preez, M & Gevers, C (2011).
433
Section 232 reads, ‘Customary international law is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament’.
434
Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others
(2016), para 17.
435
Section 231 reads, ‘
(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
78
the State’s intention to be bound by the international agreement and has no binding effect on the State
without further action.436 The second, ratification by Parliament, binds the State on an international
level and creates an obligation on its part to incorporate the agreement into domestic law.437 The act
of ratification therefore does not create rights and obligations under domestic law.438 The third,
domesticating the international agreement by enacting it into national legislation, confers the status of
national law upon the international agreement unless Parliament expressly confers a status superior to
that of national law.439 The international agreement, therefore, has binding effect and individuals
acquire rights and obligations in respect thereof. Conflict between the domesticated international
agreement and national law is resolved by the rules of statutory interpretation.440
International law finds application in the interpretation of the Bill of Rights and national law.441 All
courts, tribunals and fora are therefore constitutionally enjoined to consider international law upon
interpreting the Bill of Rights. Similarly, all courts are constitutionally bound to favour any reasonable
interpretation of the legislation that is consistent with international law over any interpretation to the
contrary.442 The international and regional framework of the right of access to procedural justice will
be examined next.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the
National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection
(3).
(3) An international agreement of a technical, administrative or executive nature, or an agreement which does
not require either ratification or accession, entered into by the national executive, binds the Republic without
approval by the National Assembly and the National Council of Provinces, but must be tabled in the
Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation;
but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic when this
Constitution took effect.
436
Section 231(1)
Glenister v President of the Republic of South Africa and Others (2011), para 180.
437
Section 231(2)
438
439
Glenister v President of the Republic of South Africa and Others (2011), paras 181–182.
440
441
Section 39.
442
Section 233 reads,
‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is
consistent with international law over any alternative interpretation that is inconsistent with international law’.
79
4.3. HUMAN RIGHTS TREATIES AND THE RIGHT OF ACCESS TO THE COURTS AND
OTHER DISPUTE RESOLUTION FORA
South Africa has ratified or acceded various United Nations conventions and protocols related to,
among others, international human rights443, women’s human rights444, children’s rights445, as well as
the International Convention on the Elimination of All Forms of Racial Discrimination446 and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment447. The
Executive has also signed, ratified and deposited a range of African Regional Conventions and
Protocols,448 in particular, the African Charter on Human and Peoples' Rights, the African Charter on
the Rights and Welfare of the Child, the Protocol to the African Charter on Human And Peoples' Rights
on the Establishment of an African Court on Human and Peoples' Rights, the Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Women in Africa, the Protocol of the Court of
Justice of the African Union, the Protocol on the Statute of the African Court of Justice and Human
Rights and the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice
and Human Rights. These emerged under the auspices of the Organisation of African Unity (OAU)
which has since been replaced by the African Union (AU).
The State has therefore followed due process as prescribed by s 231(1) and 231(2) of the Constitution,
binding itself to the principles contained in these instruments at an international level. It has further
incorporated the United Nations and African Union normative framework of access to a procedural
remedy into our law through the enactment of a range of provisions in our Constitution contained in the
443
United Nations, International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, 6 I.L.M. 360
(1967).;
International Covenant on Civil and Political Rights(1966);
United Nations, Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316, 999 U.N.T.S. 302 (1976).;
United Nations, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
abolition of the death penalty, G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49
(1989), entered into force July 11, 1991 (1991).
444
United Nations, Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 8
(1981); United Nations, United Nations Convention against Transnational Organised Crime, G.A. res. 55/25, annex I,
55 U.N. GAOR Supp. (No. 49) at 44, U.N. Doc. A/45/49 (Vol. I) (2003); United Nations, Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organised Crime, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49,
at 60, U.N. Doc. A/45/49 (Vol. I) (2003); United Nations, Protocol against the Smuggling of Migrants by Land, Sea
and Air, supplementing the United Nations Convention against Transnational Organised Crine, G.A. res. 55/25,
annex III, 55 U.N. GAOR Supp. (No. 49) at 65, U.N. Doc. A/45/49 (Vol. I) (2004).
445
United Nations General Assembly, Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, A/RES/54/263, U.N. Doc. CRC/C/OPAC/USA/CO/1 (2002).
446
Ratified on 10 December 1998
447
Ratified on 10 December 1998
448
Organization Of African Unity (OAU) (1982); Organization Of African Unity (OAU), Protocol to the African
Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights,
(2004); Organization Of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in
Africa, CAB/LEG/24.3, 1001 U.N.T.S. 45 (1974).
80
Bill of Rights, thus meeting the requirements as prescribed by s 231(4). In so doing, the State has
signalled its intention to commit itself to a social contract with its citizens in which the philosophy of
human rights and the promotion thereof are deeply enshrined. The right to a procedural remedy, in
some form or another, forms an integral part of international human rights law. It can be found in the
Universal Declaration of Human Rights (UDHR),449 International Covenant on Civil and Political
Rights (ICCPR),450 African Charter on Human and Peoples’ Rights (ACHPR), European Convention
on Human Rights,451 Revised Arab Charter on Human Rights452 and the ASEAN Human Rights
Declaration.453 A procedural remedy is also provided for in the International Covenant on the
Elimination of All Forms of Racial Discrimination454 and the International Convention against Torture
and Other Cruel, Inhuman and Degrading Treatment and Punishment.455 Although not explicitly
provided for in the Convention on the Elimination of all Forms of Discrimination against Women, the
instrument nevertheless places an obligation on State Parties to ensure the protection of women against
any form discrimination through competent national tribunals and other public institutions.456
Similarly, in the Convention on the Rights of the Child, States Parties are required to ‘undertake all
appropriate legislative, administrative and other measures’ to implement the rights contained in the
Convention.457
The focus of this discussion will be on the key instruments that have been ratified or acceded by the
State, namely the ICCPR and the ACHPR. This will be preceded by a brief examination of the relevant
part of the Universal Declaration of Human Rights.
4.3.1. The Universal Declaration of Human Rights
Although the UDHR does not have binding effect as a matter of treaty law, it forms an important context
for the interpretation of, not only treaty law, but also national legislation in the country. It has its origin
in the United Nations Charter.458 The civil, political, economic, social and cultural rights contained in
449
Article 10.
450
Article 14.
451
Article 6.
452
Article 13.
453
Article 20.
454
Article 6. States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through
the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his
human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals
just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
455
Article 14.1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and
has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.
In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.’
456
Article 2.
457
Article 4.
458
United Nations, Charter of the United Nations, 1 UNTS XVI (1945).
81
it were separated and incorporated into two binding treaties, namely, the ICCPR and the International
Covenant on Social and Cultural Rights. The UDHR extends access to these rights to all persons,459
affords them equal protection of the law and declares everyone equal before the law.460 It provides
specifically for a procedural remedy in the event of a violation of the fundamental rights entrenched in
the constitution or by law.461 It further enshrines the right to a procedural remedy in the right to a fair
trial and extends this right to both criminal and civil matters.462
The UDHR has shaped international human rights law since its inception and most treaties ratified and
acceded by South Africa recognise it either in their preambles or elsewhere in the body of the text. 463
Its relevance for international human rights law is therefore uncontested. The two instruments that
spear-head human rights law at an international and regional level are the ICCPR and the ACHPR. The
relevant provisions of these will form the focus of discussion below.
4.3.2. The International Covenant on Civil and Political Rights
The right to equality before the courts and tribunals and the right to a fair trial are internationally
considered to be the central tenets of human rights protection and it operates as the procedural means
of safeguarding the rule of law.464 The ICCPR stands at the apex of the international human rights
apparatus designed to protect and promote human rights. It is considered to be the benchmark for
human rights standards across the world among its proponents and regarded as the principal legal
instrument in the international legal order among sceptics.465 The ICCPR places an obligation on State
Parties, first, to ensure that a victim of human rights violations have an effective remedy, which includes
a judicial remedy in the case of civil and political rights.466 Secondly, it requires State Parties to ensure
that the claims of victims are determined by a judicial, administrative, legislative or other competent
459
Article 2.
460
Article 7.
461
Article 8 states that ‘Everyone has the right to an effective remedy by the competent national tribunals (own
emphasis added) for acts violating the fundamental rights granted him by the constitution or by law’.
462
Article 10 reads, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him’.
463
See para 2.3 above.
464
HRC General Comment no. 32 (2007), para 2.
465
Tyagi, Y, The UN Rights Committee: Practice and procedure, (2011) New York, USA: Cambridge University
Press.
466
Article 2.3
Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an official capacity;
82
authority467 and, thirdly, requires that competent authority to enforce such remedies.468 The ICCPR
outlaws discrimination on listed and other appropriate grounds and declares, in alignment with the
UDHR, everyone equal before the law and extends the protection of the law to the global citizen.469
The key provision in the ICCPR that entrenches the right to a procedural remedy reads as follows:
‘All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair hearing by a competent, independent and impartial tribunal
established by law...’. 470
The core features of this right include equality before the courts and tribunals, a fair and public hearing
and a competent, independent and impartial tribunal. These tribunals must be established by law. Each
of these core features will be discussed in turn.
The right of equality before courts and tribunals
The right to equality before the courts and tribunals encompasses the right of equal access to the courts,
the right to equality of arms and the right to non-discrimination. This signifies, first, that all persons,
without discrimination, must be granted the right of equal access to a court or tribunal. Article 14(1)
applies to both criminal and civil matters, a principle that is often overlooked by State Parties, as their
reports tend to focus predominantly on criminal matters.471 Charges are considered to be criminal in
nature when, regardless of their classification under domestic law, they have sanctions that ‘are penal
because of their purpose, character or severity’.472 Criminal matters, therefore, do not only refer to acts
declared punishable by domestic law but also to acts declared criminal under international law.
467
Article 2.3.
Each State Party to the present Covenant undertakes:
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority provided for by the legal system of the
State, and to develop the possibilities of judicial remedy;
468
Article 2.3 Each State Party to the present Covenant undertakes:
To ensure that the competent authorities shall enforce such remedies when granted.
469
Article 26 reads, ‘All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status’.
470
Article 14.1.
471
UN Committee on the Elimination of Racial Discrimination, CERD General Recommendation XXX on
Discrimination Against Non Citizens, (2002) UN Committee on the Elimination of Racial Discrimination.
472
Perterer v Austria 2004 (1015/2001) UN DOC CCPR/C/81/D/1015/2001 (Merits), para 9.2.
83
The determination of rights and obligations ‘in a suit at law’, by contrast, is more complex. Actions
include ‘judicial procedures aimed at determining rights and obligations pertaining to the areas of
contract, property and torts[delict] in the area of private law’473 and similar actions in the area of
administrative law such as ‘the determination of social security benefits’,474 ‘the pension rights of
soldiers’,475 or ‘procedures regarding the use of public land’.476 The range of actions that ‘a suit at law’
encompasses under the ICCPR is left open as the HRC has directed that it may ‘cover other procedures
which, however, must be accessed on a case by case basis in the light of the nature of the right in
question.’477 Article 14.1 thus provides for a general right of access to the courts and tribunals
irrespective of the nature of the proceedings before them, which includes administrative action.478
Moreover, this right does not apply to courts and tribunals only, but ‘must be respected whenever
domestic law entrusts a judicial body with a judicial task’.479 The Human Rights Committee therefore
advised that,
‘this guarantee also prohibits any distinctions regarding access to the courts and
tribunals that are not based on law and cannot be justified on objective and reasonable
grounds’.480
Adjudicating mechanisms that were not established by law are therefore not exempt from Article 14.
Instances where an individual’s attempts to gain access to competent courts and tribunals are frustrated
de jure or de facto, are considered to fall foul of the guarantee of article 14.1.481 These rights are also
not limited to citizens of States Parties but apply to all individuals, regardless of their nationality or
statelessness.482 The scope of application of article 14 also extends to all courts and tribunals whether
ordinary, specialised, civilian or military.483
The awarding of cost orders, for example, may de facto prevent indigent parties from accessing
justice.484 Hence, the Human Rights Committee advised that,
473
Casanovas v France 1994 (441/1990) UN DOC CCPR/C/51/D/441/1990 (Merits), para 5.2.
474
García Pons v Spain 1995 (454/1991) UN DOC CCPR/C/55/D/454/1991 (Merits), para 9.3.
475
Y. L. v. Canada 1986 (A/41/40) UN DOC 40 (112/1981).
476
Äärelä and Näkkäläjärvi v Finland 2001 (779/1997) UN DOC CCPR/C/73/D/779/1997 (Merits), paras 7.2-7.4.
477
478
479
Perterer v Austria (2004), para 9.2.(disciplinary proceedings against a civil servant)
Everett v Spain, Admissibility, Communication No 961/2000, UN Doc CCPR/C/81/D/961/2000, (2004), para 6.4.
(extradition).
480
481
HRC General Comment no. 32 (2007).
482
483
484
Lindon v Australia 1998 (646/1995) UN DOC CCPR/C/64/D/646/1995 (Admissibility), para 6.4.
84
‘a rigid duty under law to award costs to a winning party without consideration of
the implications thereof or without providing legal aid may have a deterrent effect
on the ability of persons to pursue the vindication of their rights under the Covenant
in proceedings available to them’.485
The right of access to the courts, entrenched in article 14.1, is in essence confined to procedures of first
instance and is silent on the issue of appeal.486
Furthermore, this right is often linked to the prohibition on discrimination on listed grounds contained
in article 26 of the ICCPR and discussed within the context of criminal proceedings.487 As a result, the
second component of this feature, namely, the promise of equality between the parties, referred to as
‘equality of arms’ within the context of civil proceedings, traditionally received less attention.
The right of equal access to the courts also safeguards equality of arms between the defence and the
prosecution in criminal cases and the disputing parties in a civil matter. The ICCPR requires parties, at
the very least, to be treated in a manner ensuring their procedurally equal position during the course of
a trial. States Parties may deviate from this principle if their domestic law allows for it. However, this
deviation is subject to justification on objective and reasonable grounds which do not include
‘disadvantage or unfairness to the defendant’.488 Jurisprudence emerging from the HRC supports this
view.489
Moreover, the right to equality of arms sets a pivotal benchmark for the credibility of the courts and
tribunals established by law. The absence thereof, calls into question the impartiality of the tribunal, as
485
Äärelä and Näkkäläjärvi v Finland (2001), para 7.2.
486
IP v Finland 1993 (450/1991) UN DOC CCPR/C/48/D/450/1991 (Admissibility), para 6.2.
487
Counter-Terrorism Implementation Task Force, Basic Human Rights Reference Guide - Right to a Fair Trial and
Due Process in the Context of Countering Terrorism, (2014) New York, U.S.A: Office of the High Commissioner of
the United Nations; Conte, A, Legal Digest of Internation Fair Trial Rights, (2012) Warsaw, Poland: OSCE Office for
Democratic Institutions and Human Rights (ODIHR).
488
Dudko v. Australia 2007 (1347/2005) UN DOC CCPR/C/90/D/1347/2005, para 7.4.
489
Quliyev v Azerbaijan 2014 (1972/2010) UN DOC CCPR/C/112/D/1972/2010. The HRC ruled this to be a violation
of equality of arms.
Valentin Evrezov, Vladimir Nepomnyaschikh, Vasiliy Polyakov, Valery Rybchenko v. Belarus 2014 (1999/2010) UN
DOC CCPR/C/112/D/1999/2010 (Human Rights Committee).and Oleg Volchek v. Belarus 2014 (1991/2010) UN
DOC CCPR/C/111/D/1991/2010.– The accused was not informed of the time of the hearing and the HRC ruled this to
be a violation of Article 14(1).
García Bolívar v. Bolivarian Republic of Venezuela, 2014 (2085/2011) UN DOC CCPR/C/112/D/2085/2011 (Human
Rights Committee).– The undue delay in paying social benefits violated article 14(1)
Dudko v. Australia (2007).
Griffiths v Australia 2014 (1973/2010) UN DOC CCPR/C/112/D/1973/2010. Extradition procedures were ruled to fall
within the purview of article 14(1) of the ICCPR, in particular the right to equality which means that the principles of
impartiality, fairness and equality must be respected.
85
the balance of power may be skewed heavily in favour of the most powerful, leaving the vulnerable at
a distinct disadvantage. Various barriers to access to procedural justice impacts on the capacity of a
litigant to put his/her case forward. Such inequality of arms requires that this right be extended beyond
procedural(formal) equality (merely providing equal opportunity) and encompass substantive
equality(equity). Accessibility often necessitates, especially in the case of vulnerable communities, a
form of legal assistance, including free legal representation under certain circumstances. The right to
legal representation will be discussed in Chapter 6.
Fair and public hearing
Fairness and publicity are features of article 14.1 that must be adhered to with regards to the publication
of the findings as well as during the hearing. In an open and democratic society, this right is bestowed
not only on the parties to the dispute but also on the general public. This right guarantees procedural
fairness only, which entails ‘the absence of any direct or indirect influence, pressure or intimidation or
intrusion from whatever side and for whatever motive’.490 Expeditiousness is a key feature of fairness
of a hearing and is addressed expressly in the ICCPR in matters of a criminal nature.491 However, the
HRC has directed that delays in matters of a civil nature that are not justifiable by the ‘complexity of
the case or the conduct of the parties’ do not sit well with article 41.1. It specifically advised that, ‘to
the extent possible’, additional financial resources should be allocated to the administration of justice
where lack of resources .and chronic under-funding are prevalent. Although the HRC has directed that
the deviation from the key principles of a fair trial is prohibited at all times, insofar as it relates to
disputes of a civil nature it appears to be subject to the available resources of the Party State.492
All trials, irrespective of their nature, must, as a matter of principle, be conducted orally and in public.
It safeguards the transparency of the proceedings and protects the interests of the individual and broader
society. It is a requirement of article 14.1 that the judgement is made public. This includes the findings,
evidence as well as the legal reasoning, barring exceptions. This right may be limited under exceptional
circumstances as reflected in the ensuing discussions.
Competent, independent and impartial tribunal established by law
This feature requires access to an independent authority empowered by its competence and by
legislation to adjudicate the dispute in an impartial manner. There are three main considerations that
490
491
HRC General Comment no. 32 (2007), para 27
492
UN Human Rights Committee (HRC), General Comment NO. 29: Article 4: Derogations during a State of
Emergency, (2001) CCPR/C/21/Rev.1/Add.11 United Nations.
86
inform this right, namely, the tribunal must be established by law, it must be competent and it must be
independent and impartial. A tribunal so established must emanate from ‘the legislature in compliance
with the legal requirements for its composition’.493 In other words, it must be established by a regular
law-making body clothed with the authority to enact statutes or an unwritten form of common law. The
United Nations Human Rights Committee (HRC) advised that the concept of a tribunal
‘designates a body, regardless of its denomination, that is established by law, is

independent of the executive and legislative branches of government or enjoys in
specific cases judicial independence in deciding legal matters in proceedings that are
judicial in nature.’494
The failure on the part of a State Party to create and allow access to a tribunal so described would be a
violation of article 14 unless domestic legislation expressly limits this right or, such tribunals are not
necessary for the proper administration of justice, the limitation is authorised by exceptions from
jurisdiction derived from international law or if the access would defeat the very substance of the
right.495
The competence, independence and impartiality of the tribunal are absolute and not capable of
limitation.496 A court’s competence is therefore measured by its judicial officers as well as its
jurisdiction. It requires judicial officers to be qualified and experienced to act in that capacity and the
tribunal must be capable of making decisions that cannot be altered by a non-jurisdictional authority to
the detriment of an individual party.
Independence refers to both the presiding officer of the tribunal insofar as it relates to his or her
appointment, as well as freedom from political interference by the executive and/or to a certain degree,
from the legislature.497 The judiciary must be institutionally protected from undue influence by and
interference from state institutions, parties to the proceedings, as well as third parties, for example, the
media.498 The independence of the tribunal is further based on the manner of appointment of presiding
officers, their security of tenure, the level of protection afforded to the tribunal and its members against
external influence.499 State Parties are required to take legislative measures to guarantee the
493
Counter-Terrorism Implementation Task Force (2014).
494
495
496
497
498
499
87
independence of the judiciary and to protect judicial officers from political interference.500 Legislative
measures must specifically address the procedures and criteria for appointment of judicial officers,
remuneration, term of office, promotion, suspension, dismissal and disciplinary sanctions.501 Judicial
officers may only be dismissed on the ‘grounds of incompetence and or misconduct, in accordance with
fair procedures ensuring objectivity and impartiality set out in the constitution or the law’.502 The HRC
therefore advised that a
‘… situation where the functions and competencies of the judiciary and the executive
are not clearly distinguishable or where the latter is able to control or direct the former
is incompatible with the notion of an independent tribunal’503
Impartiality in this context has two features. The judicial officer must exercise his/her functions with
subjective impartiality, in other words, without personal bias, prejudice or preconceived perceptions
about the dispute, nor should they promote the interest of one party over another.504 Secondly, it refers
to whether the tribunal acts in a manner with objective impartiality, in other words, does it act in a
manner that offers sufficient guarantees to exclude any legitimate doubt of impartiality.505 The tribunal
must therefore be impartial in the eyes of the reasonable observer.
The sovereignty of State Parties empowers them to give recognition to courts based on customary law
or religious courts, entrusting these with certain judicial responsibilities. However, State Parties have
a general obligation to protect the rights of individuals guaranteed under the ICCPR when these are
affected by these courts.506 They are therefore required to ensure that these courts are only authorised
to hand down binding judgements once specific criteria have been met, notwithstanding the
aforementioned general obligation.507 These include, judgements limited to minor civil and criminal
matters, judgements that meet the fundamental criteria for a fair trial and other relevant guarantees
provided for in the ICCPR.508 Such judgements must be validated by the conventional State courts
Also see United Nations Congress on the Prevention of Crime and the Treatment of Offenders, “Basic Principles on
the Independence of the Judiciary”, (1985), available at: United Nations Human Rights
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx. (accessed 7 October 2016)
500
501
UN Human Rights Committee: Concluding Observations of the Human Rights Committee, (1997)
CCPR/C/79/Add.79 Slovakia: United Nations, para 18.
502
503
Oló Bahamonde v Equatorial Guinea 1993 (468/1991) UN DOC CCPR/C/49/D/468/1991 (Merits).
504
505
506
507
508
88
applying the guarantees set out in the ICCPR.509 Parties must also be allowed to challenge these
judgements in accordance with the procedural safeguards provided by article 14 of the Covenant.510
Limitations of the right to a procedural remedy
Article 4(2) of the ICCPR does not confer non-derogable status on the right to a fair trial. However,
the HRC has consistently regarded this right as one that may not be subjected to derogation where this
would thwart the protection that non-derogable rights guarantee.511 Prohibitions on access to the courts
and other tribunals must be based on law and justified on objective grounds. A State Party’s obligation
in respect of the right to a fair trial, and the right to equality as entrenched in the ICCPR, is immediate,
and for the most part, absolute.512 However, certain features of the right to a fair trial are subject to
limitation under exceptional circumstances. These restrictions are classified as specific, general or
implied.
4.3.2.4.1. Specific limitation
The guarantee of publicity of court proceedings contained in article 14.1 of the ICCPR is expressly
limited on account of national security, public order, public morals and where it is deemed necessary in
a democratic society.513 A trial may thus be closed to the media and the public. The HRC allowed a
certain margin of discretion to State Parties where rights were restricted on the basis of national security,
in recognition of the diversity of cultures and various jurisdictions reflected across the different
continents.514 However, their response to human rights violations for the purpose of national security,
which has become a common feature among State Parties, has a corollary of accountability under the
ICCPR. A restriction of this right, therefore, cannot simply be applied on an arbitrary basis. It must
comply with the principles of an open and democratic society, so that the arbitrariness of closing trials
to the public is curtailed. Therefore, even where the derogation from article 14 is permissible, there has
to be adherence to the fundamental requirements of a fair trial.
The publication of judgements is also restricted. However, this limitation is narrowly defined and
relates only to matrimonial disputes, the guardianship of children and where it is required by the interest
of juveniles.
509
510
511
Counter-Terrorism Implementation Task Force (2014) p. 8.
512
513
Article 14.1
‘…when the interest of private lives of the parties so requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interest of justice;…’.
514
Tyagi, Y (2011) p. 654–657.
89
4.3.2.4.2. General limitation
Article 5.1 of the ICCPR contains a general limitation on the rights contained in it. This general
restriction is intended to serve as protection against the misinterpretation and misuse of any provision
of the ICCPR by both State and non-State entities.515 This article has been acknowledged for its clear
purpose but the formulation thereof has received criticism for its vagueness. Concern has been
expressed that this vagueness allows for a wide interpretation by States Parties which would enable
them to restrict almost every right in the ICCPR. States Parties therefore have a margin of discretion
in the interpretation and application of this article which limits the discretion of the HRC.
4.3.2.4.3. Implied limitations
The sovereignty of a state implies that it has an inherent right to regulate the rights of those within its
borders. However, the margin of discretion of States Parties to limit the right to a fair trial is narrower
under implied than specific limitations.516 Various implied restrictions on the right to a fair trial have
emerged in practice. These relate to the use of language, duration of proceedings and summoning of
witnesses.517 The margin of discretion of States Parties is narrower under implied restrictions than
specific restrictions. Implied restrictions must adhere to substantive and procedural fairness and are
subject to oversight by the HRC.518
Although article 14 is not included in the list of non-derogable rights of the ICCPR, where such
derogation occurs, in particular in the case of public emergencies, the State Parties are required to ensure
that it does not ‘exceed those strictly required by the exigencies of the actual situation’.519 The
interpretation of the ICCPR can therefore not be left to the sole discretion of the domestic law of the
States Parties.520 This article contains guarantees that State Parties are obliged to respect, irrespective
of their legal traditions and/or domestic law.
Article 14 is regarded as manifestly complex in nature as it combines the various guarantees contained
in it with the different scopes of application.521 It would therefore appear that ‘(i)n the body of the
515
Tyagi, Y (2011).
516
Tyagi, Y (2011).
517
Tyagi, Y (2011) p. 667.
518
Tyagi, Y (2011).
519
520
521
90
ICCPR, rights constitute the visible tip above, and restrictions form the invisible mass below’.522 In the
current international environment with refugee crises and terrorist attacks abound, the ‘age of rights’ at
a normative level has its corollary in the ‘age of restrictions’ in State practice.523
Article 40 of the ICCPR requires States Parties to submit reports to the United Nations Secretary-
General on the measures that they have adopted to give effect to the rights contained in the Covenant.524
South Africa took 14 years to submit its initial report,525 an action that did not escape mention by the
United Nations Human Rights Committee (HRC), the committee that monitors the implementation of
the ICCPR by its States Parties.526 South Africa’s report on article 14 in particular and the HRC’s
concluding comments will be considered next.
Initial reports of States parties due in 2000: South Africa527
In respect of articles 14 and 26 of the ICCPR, the Report makes mention of the constitutional guarantees
of access to procedural justice contained in section 9(1)528 and section 34529 of the Constitution. The
Report states that this ‘guarantee is available for all within the Republic including refugees, asylum
seekers and all foreigners lawfully within the Republic’.530 This claim is indeed correct in theory, as the
barriers to access to justice preclude the majority of citizens from making these constitutional
guarantees a reality. In the Report the State acknowledges the challenges to procedural justice, in
particular, the lack of access to procedural justice for persons of colour, the complexity of the legal
system and the prohibitive cost of litigation.531
The Report highlights the various measures taken to ensure access to justice for those within its borders,
such as the establishment of the Commission for Conciliation, Mediation and Arbitration (CCMA) and
various small claims courts as well as the drafting of the Traditional Courts Bill. These measures are
522
Movchan, AP, Human rights and international relations, (1988) Moscow, Russia: Progress Publishers.
523
Tyagi, Y (2011) p. 681.
524
Article 40.
The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give
effect to the rights recognized herein and on the progress made in the enjoyment of those rights:
Within one year of the entry into force of the present Covenant for the States Parties concerned;
Thereafter whenever the Committee so requests.
525
UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40 of the
Covenant, Initial reports of States parties due in 2000, (2015) South Africa.
526
UN Human Rights Committee (HRC), Concluding observations on the initial report of South Africa, (2016)
CCPR/C/ZAF/CO/1, para 2.
527
UN Human Rights Committee (HRC) 2015.
528
This section guarantees equality before the law.
529
This section guarantees the right of access to the courts and other dispute resolution fora.
530
At para 156.
531
At paras 157-158.
91
indeed commendable. In reality, the original Traditional Courts Bill has lapsed at the time and barriers
to access are prevalent in all dispute resolution fora in the country.532 The State further acknowledged
the human and infrastructure challenges with the small claims courts and advises that it has formulated
a National Action Plan to re-engineer these courts.533 The report did not provide further detail on the
intended measures in this National Action Plan and how they will assist in bridging the gap between
the law and the people, other than ‘ensuring that Small Claims Courts systems are accessible,
inexpensive and understandable by all’.534
Specific reference is made of Justice Vision 2000 and its vision for a transformed justice system and
the Report claims that there are measures underway to bridge the gap between the law and the people.
These measures include a ‘cost-effective and equitable framework for state legal aid’, which will be
discussed in Chapter 4 and ‘increased access to lawyers’, which will be discussed in Chapter 5.535 These
measures are in essence justice sector focused and lawyer-centred. No mention is made of paralegals
or community-based advice offices and how the State can include these to assist with making the law
more accessible to the marginalised and the poor. The Report further focused on a fair and public
hearing in criminal matters and the impartiality of the judicial officers.
The HRC, in its concluding observations, did not make mention of the above aspects of South Africa’s
initial report. However, it advised that the State ‘tak(es) measures to give full legal effect to the
Covenant under domestic law’ and make ‘more vigorous efforts to raise awareness about the Covenant
and the Optional Protocol among judges, lawyers, prosecutors and the public at large’.536 It further
advised the State to ensure that persons whose rights guaranteed by the Covenant have been violated,
have access to an effective remedy under domestic law. In other words, they should have, at the very
least, access to a procedural remedy.537 The extent to which there will be adherence to these directives
is unclear as the HRC raised concern about the State’s non-compliance with domestic court decisions
with specific reference to the Al Bashir debacle.538
532
See the discussions in Chapter 7.
533
At para 159.
534
At para 159.
535
At para 157.
536
At para 7.
537
At para 7.
538
At para 8.
92
4.3.3. The African Charter on Human and People’s Rights
The ACHPR is similar to other instruments in existence in Europe539 and the Americas540 and is at the
heart of the human rights system on the African continent. South Africa has qualified its accession of
the Charter with the reservation that the African Charter aligns itself to the United Nations resolutions
regarding the characterization of Zionism. The ACHPR contains a range of universal civil and political
rights,541 economic, social and cultural rights542 and duties.543
The right to a procedural remedy is not expressly provided for in the African Charter on Human and
People’s Rights. However, this Charter requires Member States to ‘undertake to adopt legislative or
other measures to give effect’ to the rights, duties and freedoms contained in it.544 It imposes a general
obligation on States Parties to recognise these rights and failure to adopt measures to give effect to them
constitutes a violation of article 1 of the Charter.545 In fact, the African Commission on Human and
People’s Rights has stated emphatically that a finding of a violation of any of the rights in the ACHPR
constitutes a violation of article 1 thereof.546
539
European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols
Nos. 11 and 14 (1950).
540
American Convention on Human Rights “Pact of San Jose”(1970)
541
Right to freedom from discrimination (articles 2 and 18(3))
Right to equality (article 3)
Right to dignity (article 5)
Right to freedom from slavery (article 5)
Right to freedom from cruel, inhuman or degrading treatment or punishment (article 5)
Rights to due process concerning arrest and detention (article 6)
Right to a fair trial (article 7 and 25)
Right to freedom of religion (article 8)
Right to freedom of information and expression (article 9)
Right to freedom of association (article 10)
Right to freedom of assembly (article 11)
Right to freedom of movement (article 12)
Right to freedom of political participation (article 14)
Right to property (article 14).
542
Right to work (article 15)
Right to health (article 16)
Right to education (article 17)
Right to life (article 4)
Right to development (article 22)
543
Article 29.
544
Article 1.
545
Jawara v The Gambia, Communications 2000 AHRLR 107 (ACHPR 2000) 147/95 and 149/96, para 46.
546
Kenneth Good v Republic of Botswana 2010 (313/05) AHRLR 43 (ACHPR 2010), para 242; Gunme and Others v
Cameroon 2009 (266/03) AHRLR 9 (ACHPR 2009), para 213. (own emphasis added).
93
The ACHPR expressly guarantees the enjoyment of the rights contained in it by every individual
without distinction.547 This is a fundamental principle in international human rights law. The criteria
for determining whether this guarantee has been violated have been developed in international
jurisprudence.548
The Charter furthermore expressly guarantees the right to equality before the law549 and equal protection
of the law.550 It enshrines the right to have access to ‘competent national organs’ in the event of a
violation of a fundamental right recognised by law.551 The Charter also places an obligation on Member
States to guarantee judicial independence and to ‘allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of the rights and freedoms
guaranteed by the present Charter’552. The African Commission on Human and People’s Rights
(African Commission) highlights the interconnectedness of Article 7 and 26, stating:
‘… While Article 7 focuses on the individual’s right to be heard, Article 26 speaks of

the institutions which are essential to give meaning and content to that right. This
Article clearly envisions the protection of the courts which have traditionally been the
bastion of protection of the individual’s right against the abuses of State power.’553
Both these articles constitute ‘the source of the guarantee of sound justice’ and give rise to two types of
obligations, namely, access to ‘appropriate justice’ and ‘independence of justice’.554 These two
obligations are regarded as the ‘bedrock of a sound justice delivery system’. 555 The African
Commission also considers the right to a fair trial to be the corollary of the right to appropriate justice
and as a consequence, it is imperative that one’s case be heard by an efficient and impartial court.556
547
Article 2 reads, ‘(e)very individual shall be entitled to the enjoyment of the rights and freedoms recongnised and
guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language,
religion, political or any other opinion, national and social origin, fortune, birth or other status’.
548
The criteria include the following:
equal cases are treated in a different manner;
a difference in treatment does not have an objective and reasonable justification; and
if there is no proportionality between the aim sought and the means employed.
549
Article 3(1).
550
Article 3(2).
551
Article 7.
552
Article 26.
553
Avocats Sans Frontières (on Behalf of Gaëtan Bwampamye) v Burundi 2000 (231/99). in African Commission on
Human and Peoples’ Rights, 14th Annual Activity Report, (2001) Addis Ababa, Ethiopia.
554
Wetsh’okonda Koso and Others v Democratic Republic of the Congo 2008 (281/2003) AHRLR 93 (ACHPR 2008),
para 76.
555
Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt 2013 (323/06) IHRL 3805, para 195. in African
Commission on Human and Peoples’ Rights, 29th Annual Activity Report, (2011) Addis Ababa, Ethopia.
556
Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (2013).
94
The right to a procedural remedy is vaguely enshrined in the right to a fair trial which is expressed in
broad terms in the ACHPR. Article 7(1) reads;
(e)very individual shall have the right to have his cause heard.
This comprises the right to:
(a) … an appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed by conventions, laws,
regulations and customs in force;
(b) … be presumed innocent until proved guilty by a competent court or tribunal;
(c) … defense, including the right to be defended by counsel of his choice;
(d) … be tried within a reasonable time by an impartial court or tribunal.
The State’s obligation under the ACHPR is absolute and immediate and this right, like all rights in the
ACHPR, is regarded as non-derogable.557
The ‘right to have his cause heard’ in essence constitutes a general guarantee to a hearing and for access
to the courts and tribunals established by statute or the common law for every individual, regardless of
the nature of the proceedings.558 This right grants individuals ‘unfettered access to a tribunal with
competent jurisdiction to hear the case’.559 Mass expulsions following arrest and detention without
having recourse to the courts, for example, constitute a violation of this guarantee.560 The African
Commission noted that the scope of article 7 is not limited to the protection of the rights of arrested and
detained persons only, to the contrary, it extends to every individual the right to approach the relevant
and competent judicial bodies for adequate relief.561 The Commission therefore stated that, ‘[i]f there
appears to be any possibility of an alleged victim succeeding at a hearing, the applicant should be given
the benefit of the doubt and allowed to have their matter heard.’562 Where an individual is not precluded
from accessing the courts but the jurisdiction of the courts to hear the matter is ousted, the right to access
the courts is considered to be illusory and constitutes a violation of article 7.563
557
Sieghart, P, The International Law of Human Rights, (1983) Oxford: Clarendon Press.
Commission nationale des droits de l’Homme et des libertés / Chad, Communication No. 74/92, (1995). in African
Commission on Human and Peoples’ Rights, 9th Annual Activity Report, (1996).
558
Kenneth Good v Republic of Botswana (2010), para 171.
Rencontre africaine pour la défence des droits de l’Homme (RADDHO) / Zambia, Communication No. 71/92, (1997) .
Zimbabwe Human Rights NGO Forum v Zimbabwe 2006 (245/2002) AHRLR 128 (ACHPR 2006).
559
560
Rencontre africaine pour la défence des droits de l’Homme (RADDHO) / Zambia, Communication No. 71/92
(1997).
561
Kenneth Good v Republic of Botswana (2010).
562
563
95
Article 7 further includes the right of an accused to be presumed innocent, have legal representation
and to have the trial concluded within a reasonable time. Article 7 confines the right to legal
representation to criminal matters only, fails to adequately guarantee the core feature of access to
procedural justice, namely, the right to a fair hearing, and does not address the right to a public hearing
at all. It thus falls short of the international standards on a fair trial as expressed in the ICCPR and its
European and American counterparts.
It further outlaws the retrospective effect of the Charter, confining the application thereof to offences
committed after it came into effect.564 However, the jurisprudence from the African Commission
suggests otherwise. It held that,
‘violations that occurred prior to the entry into force of the Charter shall be deemed to
be within the jurisdiction ratione temporis of the Commission, if they continue, after
the entry into force of the Charter’.565
The African Commission relied on international precedent to refine this right and to bring it in line with
international human rights standards.566 It thus expressed the following view,
‘Neither the African Commission nor the Commission’s Resolution on the Right to
Recourse Procedure and Fair Trial contain any express provision for the right to public
trial. That notwithstanding, the Commission is empowered by Articles 60 and 61 of the
Charter to draw inspiration from international law on human and peoples’ rights and to
take into consideration as subsidiary measures other general or special international
conventions, customs generally accepted as law, general principles of law recognised
by African states as well as legal precedents and doctrine. Invoking these provisions,
the Commission calls in aid General Comment 13 of the UN Human Rights Committee
on the right to a fair trial.’567
In spite of the parsimony that characterised the right to a fair trial in the ACHPR, the African
Commission, from the outset, thus measured the right to a fair trial according to international human
rights standards. In doing so, it considered objective criteria such as the right to equal treatment before
564
Article 7.2.
565
Gunme and Others v Cameroon (2009), para 96.
566
Media Rights Agenda and Others v Nigeria 2000 (231/99) AHRLR 200 (ACHPR 1998) 105/93, 128/94, 130/94,
152/96, para 66 in; African Commission on Human and Peoples’ Rights 2001 African Commission on Human and
Peoples’ Rights (2001).
567
Media Rights Agenda and Others v Nigeria (2000), para 66.
96
the law, the right to legal representation where the interest of justice requires it and stressed the
importance of adherence to and conformity with international human rights standards. 568 In one of its
earliest resolutions, it bolstered the right to a fair trial as contained in the ACHPR by laying down
specific guidelines.569 The guidelines addressed core features such as access to and equality before the
courts, regardless of the nature of the proceedings, and due process in criminal matters, which will be
discussed below.
Prior to the adoption of the abovementioned guidelines the African Commission provided useful
guidelines on the independence of presiding officers by adopting the Resolution on the Respect and the
Strengthening of the Independence of the Judiciary.570 In its preamble this Resolution recognised justice
as an integral part of human rights and a necessary condition for democracy. The Resolution called
upon State Parties to abolish all legislation that conflicts with the independence of the judiciary and to
incorporate international standards of judicial independence into domestic legal systems.571 This relates
in particular, to the appointment of judges, the provision of adequate resources to perform their duties,
decent living and working conditions, security of tenure and to refrain from measures that could threaten
the independence of judges and magistrates.572
The African Commission adopted the most significant resolution related to procedural justice, namely,
the Resolution on the Right to a Fair Trial and Legal Assistance in Africa.573 This Resolution formally
adopted the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa (Dakar
Declaration). It provided the Working Group on Fair Trial with a mandate to prepare draft principles
and guidelines on a fair trial and legal assistance under the African Charter. As a consequence, the
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (The African
Principles and Guidelines) were developed and subsequently adopted at the African Union Heads of
State and Government Summit in Maputo, Mozambique in August 2012. The African Principles and
Guidelines is regarded as part of a body of soft law. However, having been adopted by the Heads of
State of the African Union renders it with significant influence and the African Commission has relied
on these Principles in a number of cases related to a violation of articles 7 and 26 of the ACHPR since
its adoption, albeit within the context of criminal proceedings.574
568
Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi (2000).
569
African Commission on Human and Peoples’ Rights, Resolution on the Right to Recourse and Fair Trial, (1992).
570
African Commission on Human and Peoples’ Rights, Resolution on the Respect and the Strengthening on the
Independence of the Judiciary, ACHPR/Res.21(XIX)96 (1996).
571
ACHPR/Res.21(XIX)96 (1996), para 1
572
ACHPR/Res.21(XIX)96 (1996).
573
African Commission on Human and Peoples’ Rights, Resolution on the Right to Fair Trial and Legal Aid in Africa,
ACHPR/Res.41(XXVI)99 (1999).
574
Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt Egyptian Initiative for Personal Rights and
INTERIGHTS v Egypt (2013).
97
The African Principles and Guidelines contains general principles applicable to all legal proceedings,
be it criminal, civil, administrative or military.575 The right to an effective remedy is expressly provided
for by the Principles.576 It guarantees the right to an effective remedy by ‘competent national tribunals’
in the event of a violation of rights guaranteed by domestic law or the Charter,577 which includes, among
others, the right of access to justice.578 It imposes an obligation on State Parties to ensure that any
individual whose rights have been violated has an effective remedy,579 the violation shall be determined
by ‘competent, judicial, administrative and legislative authorities,580 ‘enforced by competent
authorities’581 and obeyed by organs of state against whom a judicial order has been granted.582 It
expressly states that the granting of amnesty to perpetrators of human rights violations constitutes a
violation of the right to an effective remedy.583
Principle A of The African Principles and Guidelines provides extensive detail on the right to a fair and
public hearing584 before an independent and impartial tribunal.585 These core features of the right to a
fair trial will be addressed below.
Fair hearing
The Resolution on the Right to a Fair Trial and Legal Assistance in Africa requires that all persons have
access to procedural justice without discrimination regardless of the nature of the proceedings.586 The
African Principles and Guidelines therefore expressly grants individuals the right to a fair and public
hearing.
The African Commission directed the respondent state to, among others, ‘harmonize the State Security Emergency
Laws with a view to bringing it in conformity with the Charter and other international legislations and regional norms
and standards’ (at para 233(b)V)
Working Group on Strategic Legal Cases v. Democratic Republic of Congo 2015 (259/02) (ACHPR 2015). -
The African Commission relied on what it called the Directives and Principles on the Right to a Fair Trial and
Judicial Assistance in Africa (2001), in support of articles 7(1)(a) and (c) of the ACHPR at paras 75, 81and 82. These
Directives are the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
Interights, ASADHO and Madam O. Disu v. Democratic Republic of Congo 2013 (274/03) ACHPR 28. -
The African Commission invoked the African Principles in support of articles 6, 7(2), 7(1)(a), (c) and (d) of the
ACHPR, paras 66, 69, 70,77, 79 and 80.
575
Principle A.2.(a).
576
Principle C.
577
Principle C(a).
578
Principle C(b)1.
579
Principle C(c)1.
580
Principle C(c)2.
581
Principle C(c)3.
582
Principle C(c)4.
583
Principle C(d).
584
Principle A. 1-3.
585
Principle A. 4-5.
586
Principle 2 (a) All persons shall have their course heard and shall be equal before the courts and tribunals in the
determination of their rights and obligations.
98
The elements that make up the notion of a fair hearing under the ACHPR are clearly identified in
Principle A of The African Principles and Guidelines. Respect for the inherent human dignity of
participants in the proceedings, especially women, forms an inherent part of this right. The key elements
to a fair hearing are equality of access and due process. The principle of equality of access is ensured
when all persons have equal access to adjudicating mechanisms and are regarded as equal before the
judicial body without distinction on listed and other grounds.587 The grounds listed in the Principles are
therefore non-exhaustive.588 The Principles expressly requires equality of arms between the parties to
the proceedings, regardless of the nature of the proceedings before it.589 The Principles recognises that
equality of arms may require some form of representation at any stage of the proceedings and makes
express provision for it.590
It further recognises that poverty and language may present a barrier to meaningful participation in the
proceedings and provides for the right to an interpreter as well as free legal assistance for indigent
parties in both criminal and civil matters if the interest of justice so require.591
The right to a fair hearing also denotes procedural fairness. The Principles requires that a party to the
proceedings be given adequate time to prepare their case and lead and challenge evidence592 and that
the final decision of the judicial organ be made without undue influence593 and expeditiously, detailing
the reasons for the decision.594 Express provision is made for the right of appeal to a higher judicial
body, which applies to both criminal and civil matters.595 Jurisprudence from the African Commission
renders this right a fundamental component of the right to a fair trial.596
587
Principle2.(b) and (c).
588
Gunme and Others v Cameroon (2009), para 121.
589
Principle A.2(a).
590
Principle A.2.(f).
Principle G. (a) – (c).
591
Principle H (a) – (k).
592
Principle A.2.(e).
593
Principle A.2.(h).
594
Principle A.2.(i).
595
Principle A.2.(j).
596
Working Group on Strategic Legal Cases v. Democratic Republic of Congo (2015).
Women’s Legal Aid Center (on Behalf of Moto) v. Tanzania Communication 2004 RADH 120 (ACHPR 2004)
243/2001, para 47.
International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on Behalf of Ken
Saro-Wiwa Jnr.) v Nigeria 2000 RADH 217 (ACHPR 2000) 137/94, 139/94, 154/96, 161/97, para 88. 91-93. in
African Commission on Human and Peoples’ Rights, 12th Annual Activity Report, (1999) Algiers, Algeria.
99
Public hearing
Although neither the ACHPR nor the Resolution on the Right to Recourse Procedure and Fair Trial
provides for the right to a public hearing, the African Commission relied on international precedent and
ruled that all trials should be public and that a limitation on the publicity of trials be allowed only under
exceptional circumstances.597
The African Principles and Guidelines now expressly provides for a public hearing as well as the
publication of the findings following the judicial proceedings.598 Where the authorities failed to provide
the plaintiffs with a copy of the judgment of a military tribunal that presided over a criminal matter, the
African Commission ruled it to be in violation of this core feature.599 Detail regarding the sitting of the
judicial organs and the venue where proceedings will be conducted must be publicised.600 State Parties
are also required to provide adequate facilities for public attendance and may not place limitations on
the categories of persons that may attend the proceedings.601 The public and the media may only be
excluded from hearings under exceptional circumstances.602 The limitation on public attendance
mirrors that of the ICCPR and the courts are enjoined to protect the identity and dignity of victims of
sexual violence as well as participants placed at risk as a result of their participation in the
proceedings.603 In spite of the aforementioned, The African Principles and Guidelines does not allow
anonymous witnesses to the extent that the identity of the witness is concealed from both the defence
and the presiding officer.604
Independent tribunal
Extensive guidelines are provided for this core feature of a fair trial in The African Principles and
Guidelines.605 The independence of both the judicial organ as well as the judicial officers is regarded
as imperative. The tribunal is regarded as independent if it is established by law,606 guaranteed by the
597
Media Rights Agenda and Others v Nigeria (2000) p. 293.
598
Principle A.3.
599
Wetsh’okonda Koso and Others v Democratic Republic of the Congo (2008).
600
Principle A.3.(a).
601
Principle A.3.(c). and (d).
602
These include:
In the interest of justice for the protection of children, witnesses or the identity of victims of sexual violence (Principle
A.3.(f).1.)
For reasons of public order or national security in an open and democratic society that respects human rights and the
rule of law. (Principle A.3.(f).2.).
603
Principle A.3.(g).
604
Principle A.3.(i).
605
Principle A.4.(a). – (v).
606
Principle A.4.(b).
100
constitution and the domestic legal order,607 independent from the executive,608 respected by the State
and its agencies609 and free from inappropriate and unwarranted interference.610 Military tribunals are
not allowed to oust the jurisdiction of the courts so established.611
The judiciary is granted exclusive authority to determine the justiciability of a matter.612 Specific
guidelines are prescribed for the appointment, training, security of tenure, remuneration, term of
office and disciplinary and other conditions of service.613 States are required to provide adequate
resources to enable the courts and tribunals to perform their functions.614
It is furthermore equally important for the tribunal to be competent. The African Commission held
that the
‘… definition of the word ‘competence’ is particularly sensitive since … depriving
courts of qualified staff to guarantee their impartiality, infringes on the right to have
one’s cause heard by competent organs… constitutes a violation of articles 7(1) (d)
and 26 of the Charter.’615
It has consistently held that the right to have one’s cause heard requires that the matter be brought before
a tribunal authorised by law to preside over the matter.616 This requires the tribunal to have jurisdiction
over the subject matter as well as the person.
607
Principle A.4.(a).
608
Principle A.4.(g).
609
Principle A.4.(a).
610
Principle A.4.(f).
611
Wetsh’okonda Koso and Others v Democratic Republic of the Congo (2008); Gunme and Others v Cameroon
(2009); Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (2013), paras 195–200., 10th Extra-
ordinary Session) paras 195 – 200.
612
Principle A.4.(c).
613
Principle A.4.(h) – (v).
614
Principle A.4.(v).
615
Amnesty International and Others v. Sudan, African Commission on Human and Peoples’ Rights, Comm. No.
48/90, 50/91, 52/91, 89/93 (1999). 1999 AHRLR 297 (ACHPR 1999) 48/90, 50/91, 52/91, 89/93.
616
Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe 2009
(284/2003) AHRLR 235 (ACHPR 2003).
Zimbabwe Lawyers for Human Rights (on Behalf of Meldrum) v Republic of Zimbabwe 2009 (284/04) AHRLR 235
(ACHPR 2009), paras 103–108.
Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. The Sudan 2009 (279/03-
296) (ACHPR 2009), paras 180–185.
Kenneth Good v Republic of Botswana (2010).
101
Impartial tribunal
A tribunal is considered to be impartial if it bases its decision solely on the evidence presented before
it without undue influence, direct or indirect, from any quarter.617 Parties to the proceedings are
empowered to challenge the impartiality of the judicial body where it can be established that the tribunal
or presiding officer’s fairness appears to be in doubt.618 Three relevant facts determine the impartiality
of the judicial body619 and the Principles lists specific instances where the judicial officer would be
required to step down.620
Military tribunals are required to be just, fair and impartial and where such tribunals preside over
offences that fall within the jurisdiction of the normal courts, it would constitute a violation of Article
7.621
A substantial vacuum in the regional legislative framework with regards to the right to a procedural
remedy has been filled by these Principles. Article 62 of the ACHPR requires States Parties to submit
reports every two years on the measures that they have adopted to give effect to the rights contained in
the Charter.622 As with the reports to the United Nations on the measures taken to implement the ICCPR,
the reports to the African Union on the measures taken to implement the ACHPR, were equally sparse.
The first periodic report was submitted in 2005 and the second in 2015. However, this must be viewed
against the backdrop of a general failure of African countries to submit these reports and the fact that
the record shows that South Africa is one of only eight (8) countries that are up to date with their reports
to the African Union.623
617
Principle A.5.(a).
618
Principle A.5.(b).
619
Principle A.5.(c). ‘The impartiality of a judicial body could be determined on the basis of three relevant facts:
that the position of the judicial officer allows him or her to play a crucial role in the proceedings;
the judicial officer may have expressed an opinion which would influence the decision-making ;
the judicial official would have to rule on an action taken in a prior capacity’.
620
Principle A.5.(d). ‘The impartiality of a judicial body would be undermined when:
a former public prosecutor or legal representative sits as a judicial officer in a case in which he or she prosecuted or
represented a party;
a judicial official secretly participated in the investigation of a case;
a judicial official has some connection with the case or a party to the case;
a judicial official sits as member of an appeal tribunal in a case which he or she decided or participated in a lower
judicial body.
In any of these circumstances, a judicial official would be under an obligation to step down’.
621
Gunme and Others v Cameroon (2009); Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (2013).
622
‘Each state party shall undertake to submit every two years, from the date the present
Charter comes into force, a report on the legislative or other measures taken with a view to
giving effect to the rights and freedoms recognized and guaranteed by the present Charter.’
623
See the States Reporting Map African Commission on Human and Peoples’ Rights, “State Reports and Concluding
Observations”, (2017), available at: http://www.achpr.org/states/reports-and-concluding-observations/. (accessed 5
May 2017).
102
In its reply to the First Periodic Report, the African Commission on Human and Peoples’ Rights
expressed concern over the fact that South Africa’s Report was submitted almost four (4) years after it
was drafted and that most of the information was outdated by the time that the Commission examined
it.624 This study will therefore only consider the Second Period Report and the concluding observations
and recommendations by the African Commission on the First Periodic Report as the concluding
observations on the Second Periodic Report are not available yet.625
4.3.4. The African Commission’s concluding observations and recommendations on the First
Periodic Report of the Republic of South Africa
The concluding observations of the African Commission did not specifically address articles 7 and 26
of the ACHPR although there are generic aspects raised that relate to the rights contained in the Charter
in general. The African Commission praised South Africa for, among others, its legal reforms and for
the fact that in some instances, the rights guaranteed in the Constitution of the Republic of South Africa
exceed those contained in the ACHPR.626 It nevertheless raised concerns over the outdated Report
submitted by the State627 and the one-sided nature of the Report.628 It mentions in particular, the lack
of State involvement in promoting civil, political and socio-economic rights, the lack of civil society
participation in the preparation of the Report, the failure to share the Report with all sectors of society
thus failing to solicit their contribution and response629 and the lack of awareness of the ACHPR among
the South African public.630 It further expressed concern over the Report’s emphasis on legislative
measures taken to ensure compliance with particular aspects of the ACHPR without indicating how
these measures contributed to enhancing the rights of the persons in the country.631
The Commission therefore recommended, among others, that the State collaborates and interacts with
civil society organisations and the international community for the effective implementation of the
country’s National Plan of Action on Human Rights, escalates its efforts to implement the ACHPR and
raise awareness and understanding of it among the population.632
624
At para 16.
625
Submitted 1st of February 2016 and considered at the 58th Ordinary Session of the African Commission on Human
and Peoples’ Rights but concluding comments have not been reported on yet.
626
The African Commission specifically mentions the right to sports and leisure but made no further reference to other
instances. (para 14).
627
At para 16.
628
At para 17.
629
At para 17.
630
At para 17.
631
At para 18.
632
At para 26-28.
103
4.3.5. The Second Periodic Report under the African Charter on Human and People’s Rights
The Second Periodic Report was not only a combination of the third, fourth, fifth and sixth reports 633
but was also merged with the Initial Report under the Protocol to the African Charter on the Rights of
Women in Africa. The State acknowledged the delay in the Report634 and mentioned that an ‘Inter-
departmental Committee has been established to ensure enhanced compliance with treaty and reporting
obligations’.635 It specifically addresses the above recommendations made by the African Commission
in the First Periodic Report. The Report noted that the State has solicited the views of national
institutions on human rights and civil society organisations and incorporated these where appropriate.636
However, unlike the State’s Report under Article 40 of the ICCPR, no shadow reports accompanied
this Second Periodic Report to the African Union and no further clarity was provided on the nature and
extent of the consultation process with civil society.
The Second Periodic Report specifically addresses article 2 and 3 of the ACHPR.637 The State responded
to the recommendations made by the African Commission following the First Periodic Report by not
only focusing on the legislative framework638 but also the institutions, infrastructure639 and strategic
measures aimed at implementing the principles of the Charter.640 It further proceeded to use statistical
evidence in support of the Report.641
The State first highlighted the prominence of the equality clause in the Constitution of the Republic of
South Africa.642 It further proceeded to emphasise a number of statutes that are intended to give effect
to the right to equality and non-discrimination under the domestic legal order, in particular, the
Employment Equity Act,643 Civil Unions Act,644 and the Promotion of Equality and the Prevention of
Unfair Discrimination Act.645 Reference is also made to proposed legislative measures to prevent and
633
At para 3.
634
At para 5.
635
At para 7.
636
At para 4.
637
Article 2
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the
present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or
any other opinion, national and social origin, fortune, birth or other status.
Article 3
Every individual shall be equal before the law.
Every individual shall be entitled to equal protection of the law.
638
At para 13-15 and 19.
639
At para 15-17 and 21-25.
640
At para 20.
641
At para 18.
642
At para 13.
643
Employment Equity Act, 55 of 1998.
644
Civil Unions Act, 17 of 2006.
645
Promotion of Equality and Prevention of Unfair Discrimination Act (2000).
104
combat hate crimes and hate speech, the promulgation of Regulations for the Equality Courts and the
development of a National Plan of Action in consultation with human rights institutions and civil
organisations.646
The Report pointed out that access to procedural justice is promoted through awarding jurisdiction on
matters related to equality not only to the Equality Courts but also Magistrates Courts and High
Courts.647 It emphasises that access to the Equality Courts is enhanced by the relaxed rules and
procedures, support by the clerk of the court and the support by the South African Human Rights
Commission and the Commission for Gender Equality. It is purportedly further enhanced by the fact
that that legal representation is not a requirement for access to the Equality Courts and access is free.648
The Report further pointed out how the courts have guarded the right to equality consistently and that
these court decisions informed government policy.649 The State nevertheless acknowledged that the
Equality Courts are under-utilised.650 The Report was vague on the ‘programmes (undertaken) … to
raise human rights awareness, provide constitutional education and advance social cohesion’.651
The State further reported on the measures taken to ensure the right to a fair trial although the focus was
predominantly on criminal justice. Mere mention is made of the right of access to procedural justice
contained in section 34652 of the Constitution and specific emphasis is placed on alternative dispute
resolution mechanisms, diversion653 and legal aid.654 The Report briefly addresses measures to ensure
the right to equal protection of the law by mentioning the guarantee contained in section 9(1) of the
Constitution and briefly focuses on how women have benefitted from the legal reforms and court
decisions.655
As was the case in the Initial Report to the Secretary-General of the United Nations, this Report does
not address paralegal service with the exception of paralegals employed by Legal Aid South Africa.
646
At paras 19-20.
647
At para 16.
648
See the discussion on institutions that support access to justice in Chapter 7.
649
At para 21-25.
650
At para 18.
651
At para 26.
See the discussion on the research conducted on human rights awareness in South Africa in Chapter 7.
652
At para 143.
653
At para 146.
See the discussion on these mechanisms in Chapter 6
654
The legal aid aspects of the report will be discussed in Chapter 6
655
At paras. 232-235.
105
4.4. CONCLUSION
South Africa became a member of the international community through its re-admission to the United
Nations and its admission to the Organisation of African Unity in 1994. This membership and South
Africa’s ratification and accession to a range of treaties and protocols created, among others, a human
rights ecosystem which required the coexistence of the domestic, regional and global human rights
frameworks, requiring clarification of the nature of the relationship between these institutional
frameworks. The Constitutional Court has held consistently and definitively that the interrelationship
between domestic law and international law in South Africa is a matter of domestic law and the starting
point for that enquiry is the Constitution of the Republic of South Africa which enjoys supremacy in
the national hierarchy of norms. The manner of incorporation of international law reflects a blend of
monism and dualism.
Customary international law has been incorporated into the domestic legal order in the monist tradition
through an incorporation clause. Section 232 of the Constitution confers the status of national law upon
customary international law, rendering it directly applicable within the domestic domain, barring
conflict with an Act of Parliament or the Constitution. In the event of conflict, the courts have opted
for a harmonising interpretation of the conflicting instruments.
Section 231 of the Constitution incorporates treaty law into the domestic legal order in the dualist
tradition. It prescribes a three step process, each with distinct legal consequences. The three steps entail
first, negotiating and signing the international agreement, secondly, ratification by Parliament and
thirdly, domesticating the international agreement by enacting it into national legislation.
The right of access to dispute resolution fora is considered to be a pivotal precept of the right to
procedural justice without which the guarantees and protections contained in human rights instruments
would be worthless. The core features of the right to procedural justice that emerge from the
international arena include the right to equality before the courts and tribunals, a fair and public hearing
and a competent, independent and impartial tribunal. These guarantees apply to both criminal and civil
proceedings. The ICCPR does not confer non-derogable status on the right to procedural justice.
However, the obligation of the State Party in respect of a fair trial (hearing) and the right to equality is
immediate and, for the most part, absolute. There are nevertheless certain features of the right to a fair
trial that are subject to specific, general or implied limitations.
Although the ACHPR does not entrench the right to procedural justice to the same extent as the ICCPR,
this statutory vacuum has been supplemented by the adoption of the Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa, an extensive set of directives for member states.
106
These directives give express recognition to paralegals and codify their role as facilitators of access to
justice on the African continent. A Party State’s obligation under the ACHPR is immediate and non-
derogable.
The effective enjoyment of the right of access to justice as contained in treaty law or customary
international law is generally curtailed in two ways.656 The conflicting norms and standards of
international law and specific domestic legislation place constraints on the right of access to justice.
Article 8 of the UDHR, for example, enables this restriction as it provides for an effective remedy for
‘acts violating the fundamental rights granted him by the constitution and by law’.657 The international
standards and norms are thus inadvertently shifted from the international domain to the domain of the
respondent state, where it may or may not meet these international standards.658
Both the ICCPR and the ACHPR require member states to report on measures taken to give effect to
the guarantees contained in these instruments under the domestic legal order. However, it is clear that
the capacity of the of international and regional human rights monitoring bodies to ensure compliance
with these human rights instruments is challenged when States Parties do not comply with reporting
standards and the lack of awareness among beneficiaries of the rights conferred by these instruments
persists.
The Reports submitted by South Africa to date related to the right of access to procedural justice
highlight the extensive legal reforms on which the country has embarked. However, the gap between
the law and the people remains. The measures taken to enhance access to justice also remain justice
sector-focused, lawyer-centred and skewed towards criminal justice. Reference to the paralegal is
absent from these reports but for the service that they render under Legal Aid South Africa. This is of
particular concern given the international recognition of the South African community-based paralegals
for the socio-legal service that they render to the poor and the marginalised in the country and the
express codification of the role of the paralegal by the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa.
The aforementioned norms and standards, to a greater or a lesser extent, have been incorporated into
the domestic legal order in the country through the enactment of the Constitution. Not only has the
656
Francioni, F, Access to Justice as a Human Right, (2007), Francioni, F (ed.) Oxford, UK: Oxford University Press.
657
(own emphasis added)
658
Access to Justice as a Human Right (2007).
107
right to procedural justice been codified, the Constitutional Court has also protected it jealously. 659
South Africa is thus bound by these international and regional norms and standards to the extent that
the Constitution prescribes. These norms and standards of procedural justice in civil matters as
contained in section 34 of the Constitution of the Republic of South Africa and its related provisions
will be examined in Chapter 5.
Having examined the State’s obligation to provide access to procedural justice in civil matters under
treaty law, Chapter 5 will proceed to examine its obligation under section 34 of the Constitution of the
Republic of South Africa.
659
However South Africa, like in many countries across the world, not only on the African continent, increasingly
faces the challenge of the enforcement of the remedies prescribed by the courts. A case in point is the hasty departure
of President Al Bashir from the Sudan from South Africa while the Supreme Court of Appeal deliberated over the
arrest warrants issued for him by the International Criminal Court. The State thus managed to circumvent the
enforcement of the remedy prescribed by the court, which was to arrest Al Bashir. The State has served notice to the
International Criminal Court of their intention to withdraw as a member but has since revoked that notice following a
Constitutional Court challenge to the withdrawal.
Furthermore, in Modderklip the State has failed to implement the remedy prescribed by a lower court, resulting in the
matter ending up in the Constitutional Court where it was ordered to comply. (Modderfontein Squatters, Greater
Benoni City Council v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa & Others v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA);
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (2005).).
108
CHAPTER 5
SECTION 34 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
5.1. INTRODUCTION
The fundamental right of access to the courts and other dispute resolution mechanisms (access to
procedural justice) is the instrument that enables anyone to enforce a substantive right to which they
have a claim. This right, in a sense, is therefore related to all rights contained in the Bill of Rights.
However, the focus in this study is on the matrix of constitutional provisions most closely related to
the right of access to procedural justice.
The substantive legal framework of access to justice in South Africa is informed by a mandate of social
transformation with the central focus on making the law work for everyone but especially the poor and
the marginalised. Section 34 of the Constitution contains the general right of access to procedural justice
in civil matters. However, it does not function in isolation but in collaboration with a series of other
constitutional provisions. This chapter will first examine section 34 and its key constitutional
provisions and secondly, examine the nature, content, application and limitation of this right as
interpreted in academic literature and through the courts.
5.2. SECTION 34 AND KEY CONSTITUTIONAL PROVISIONS
The substantive legal framework of access to procedural justice spans a network of constitutional
provisions and related national legislation. However, this study focuses on the fundamental right of
access to procedural justice contained in section 34 of the Constitution which reads,
‘[e]veryone 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.’
Due to the pivotal nature of this right of access to the courts and other tribunals and fora, it is related to
all provisions in the Bill of Rights. However, there is a range of key provisions that have particular
relevance for access to procedural justice. The matrix of constitutional provisions most closely related
109
to the right of access to the courts include provisions on arrested, detained and accused persons,
standing, customary law and other leverage rights.660 These will be discussed below.
Section 34 and arrested, detained and accused persons
Sections 34 and 35661 do not govern the same legal space nor do they intersect, as the former relates to
civil and the latter to criminal matters. Section 34 is nevertheless regarded as the ‘twin’ of section
660
Woolman, S, Bishop, M, Chaskalson, M, et al 2006 Woolman, S Bishop, M Chaskalson, M et al (2006); Cheadle,
H & Davis, D, South African Constitutional Law: The Bill of Rights, (2005) Johannesburg, South Africa: LexisNexis.
661
35.
(1) Everyone who is arrested for allegedly committing an offence has the right—
(a). to remain silent;
(b). to be informed promptly—
(i). of the right to remain silent; and
(ii). of the consequences of not remaining silent;
(c). not to be compelled to make any confession or admission that could be used in evidence against
that person;
(d). to be brought before a court as soon as reasonably possible, but not later than—
(i). 48 hours after the arrest; or
(ii). the end of the first court day after the expiry of the 48 hours, if the 48 hours expire
outside ordinary court hours or on a day which is not an ordinary court day;
(e). at the first court appearance after being arrested, to be charged or to be informed of the reason for
the detention to continue, or to be released; and
(f). to be released from detention if the interests of justice permit, subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a). to be informed promptly of the reason for being detained;
(b). to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
(c). to have a legal practitioner assigned to the detained person by the state and at state expense, if
substantial injustice would otherwise result, and to be informed of this right promptly;
(d). to challenge the lawfulness of the detention in person before a court and, if the detention is
unlawful, to be released;
(e). to conditions of detention that are consistent with human dignity, including at least exercise and the
provision, at state expense, of adequate accommodation, nutrition, reading material and medical
treatment; and
(f). to communicate with, and be visited by, that person’s—
(i). spouse or partner;
(ii). next of kin;
(iii). chosen religious counsellor; and
(iv). chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the right—
(a). to be informed of the charge with sufficient detail to answer it;
(b). to have adequate time and facilities to prepare a defence;
(c). to a public trial before an ordinary court;
(d). to have their trial begin and conclude without unreasonable delay;
(e). to be present when being tried;
(f). to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g). to have a legal practitioner assigned to the accused person by the state and at state expense, if
substantial injustice would otherwise result, and to be informed of this right promptly;
(h). to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i). to adduce and challenge evidence;
(j). not to be compelled to give self-incriminating evidence;
(k). to be tried in a language that the accused person understands or, if that is not practicable, to have
the proceedings interpreted in that language;
(l). not to be convicted for an act or omission that was not an offence under either national or
international law at the time it was committed or omitted;
110
35.662 It has been argued with authority that ‘given the contextual proximity [of] and the relationship
[between]’ the two rights, some of the sub-rights explicitly conferred by section 35 are also conferred
by section 34, albeit implicitly.663 These sub-rights include the right to a fair trial, more specifically,
the right to receive adequate notice, the right to have proceedings commence and conclude without
undue delay, the right to present and challenge evidence and most importantly, the right to legal
representation, including representation at the expense of the State under certain circumstances. Other
sub-rights conferred by section 35, such as the right to be presumed innocent and to remain silent,
clearly do not apply to section 34. Therefore, to take the initial analogy further, section 34 and 35 could
very well be regarded as fraternal664 and not identical665 twins insofar as it relates to the right to a fair
hearing.
Section 34 and standing
An enquiry into the justiciability of a dispute requires an examination of both procedural and substantive
justiciability. Substantive justiciability involves an enquiry into whether the subject-matter of the
dispute falls within the jurisdiction of the courts at all, whereas standing, ripeness and mootness are
three fundamental principles that fortify the doctrine of procedural justiciability.
Standing refers to the relationship between the applicant in a case and the relief sought. It entails an
enquiry into whether the person who approaches the court is the appropriate person to present the matter
to the court for adjudication.666 Ripeness, on the other hand requires that a dispute should not be brought
before the court prematurely, in other words, before the prejudice, or the threat of prejudice, has
materialised.667 Mootness, in contrast, involves an enquiry into whether the dispute has been brought
for adjudication after the matter has been resolved between the parties and the prejudice, or the threat
(m). not to be tried for an offence in respect of an act or omission for which that person has previously
been either acquitted or convicted;
(n). to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the
offence has been changed between the time that the offence was committed and the time of
sentencing; and
(o). of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must be given in a
language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission
of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.
662
Brickhill, A & Friedman, J, 'Access to Courts' in Constitutional Law of South Africa (2006) Juta p. 5.
663
Brickhill, A & Friedman, J (2006) p. 6.
664
These share the genetic similarity of siblings which is approximately fifty percent (50%).
665
These have the same genetic origin and can often not be told apart.
666
Loots, C, 'Access to the Courts and Justiciability' in Chaskalson, M, Woolman, S & Roux, T (eds) Constitutional
Law Of South Africa (1999) Pretoria, South Africa: Juta.
667
Loots, C (1999).
111
of prejudice, no longer exists. This means bringing the matter before the court when it is too late to
adjudicate the matter.668
There is a distinct difference between the common law approach to standing and that of the Bill of
Rights. Under the common law standing is very narrowly interpreted in that the applicant is required
to have a direct interest in the subject matter of the dispute before the court to the extent of being
personally and negatively affected by the alleged infringement.669 The much broader approach to
standing under the Bill of Rights, contained in section 38,670 stands in sharp contrast with the common-
law approach.671
The Constitutional Court has accorded a generous interpretation to section 38, in that anyone would be
afforded standing provided that
- there is an allegation that a right in the Bill of Rights has been violated or threatened
- the applicant has sufficient interest in the remedy sought as per the listed categories for which
own interest is not a requirement.672
It is not a requirement that there is an allegation of infringement of or threat to the fundamental right of
the persons listed in section 38. It is sufficient to allege that, objectively speaking; a fundamental right
has been infringed or threatened. This is a significant development for poor and marginalised
communities as case law shows that this section has widened the access to adjudicating mechanisms for
many, who would otherwise not have had access.
Section 38 explicitly links the right to a procedural remedy to the right to a substantive remedy. This
section, therefore, expressly confers the right to have an alleged breach of a fundamental human right
heard and decided by the courts (the right to a procedural remedy) and connects that right to the outcome
of the proceedings, which refers to the relief sanctioned by the court (substantive remedy). This
668
Loots, C (1999).
669
Jacobs En ’N Ander v Waks En Andere 1991 (113/1990) ZASCA 152 (AD), para 533J–534E.
670
‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights
has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The
persons who may approach a court are:
(a) Anyone acting in their own interest;
(b) Anyone acting on behalf of another person who cannot act in their own name;
(c) Anyone acting as a member of, or in the interest of, a group or class of persons;
(d) Anyone acting in the public interest; and
(e) An association acting in the interest of its members’.
671
Lawyers for Human Rights and Other v Minister of Home Affairs and Other 2004 (CCT18/03) ZACC 12 (CC),
para 14; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (1995).
672
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (1995).
112
connection has been consistently applied by the Constitutional Court.673 The Supreme Court of Appeal
reiterated the refrain of the Constitutional Court and held that the courts ‘have a duty to mould an order
that will provide effective relief to those affected by a constitutional breach.’ 674
Section 38(a) confers standing on ‘anyone acting in their own interest’. The whole of section 38 has to
be read within the context of increasing access to procedural justice as a constitutional imperative.
However, although jurisprudence involving the Interim Constitution suggested that the person acting in
his or her own interest did not have to have suffered the infringement of the constitutional right or made
an allegation to that effect,675 the wording of section 38(a) of the Final Constitution suggests otherwise.
The phrase ‘anyone acting in their own interest’676 seems to require that the applicant claims an
infringement of or a threat to a fundamental right to which he or she has a claim.
The Constitution also makes provision for a person or persons to act on behalf of another who is unable
to seek relief in his or her own name.677 Case law suggests that section 38(b) has been applied rather
parsimoniously678 and is considered to be the ‘poor relation’ of sections 38(c) and (d).679 Representative
standing is provided for in sections 38(b) - (e) and litigants who are able to rely on section 38(b) are
often able to claim relief through sections 38(c) and (d).680
The Constitution also introduces class actions into South African law by expressly giving recognition
to them through section 38(c). Such actions empower ‘one or more claimant [to] litigate against a
defendant not only on their own behalf but on behalf of all claimants’.681 All members of the class,
whether joined in the action or not, stand to benefit from and are bound by the outcome of the litigation
unless they opt out by invoking prescribed procedures. This provision has been interpreted very
narrowly initially682 but the courts have subsequently taken into consideration the prevailing barriers to
673
Fose v Minister of Safety and Security 1997 (CCT14/96) ZACC 6, para 102.
674
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd; President of the Republic
of South Africa & others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae)
(2004), para 42.
675
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (1995); Port Elizabeth
Municipality v Various Occupiers (2004).
676
Own emphasis added.
677
Section 38(b).
678
Maluleke v Member of the Executive Council, Health and Welfare, Northern Province 1999 (4) SA 367 (T);
Mohlomi v Minister of Defence 1996 (CCT41/95) ZACC 20; Permanent Secretary Department of Welfare, Eastern
Cape Provincial Government and Another v Ngxuza and Others 2001 (493/2000) ZASCA 85.
679
Plasket, C, 'Representative standing in South African Law', (2009), 62 , The Annals of the American Academy of
Political and Social Science, pp. 256.
680
Plasket, C (2009).
681
Plasket, C (2009) p. 19.
682
Maluleke v Member of the Executive Council, Health and Welfare, Northern Province (1999).
113
access to justice in the country683 which militates against a positivist approach. The dictum of Didcott
J, formulating the first major precedent on the right of access to the courts in South Africa, captures the
view of the Constitutional court as follows:
‘[The dispute] must be viewed against the background depicted by the state of affairs
prevailing in South Africa, a land where poverty and illiteracy abound and differences
of culture and language are pronounced, where such conditions isolate the people
whom they handicap from the main stream of the law, where most persons who have
been injured are either unaware of or poorly informed about their legal rights and what
they should do in order to enforce those, and where access to the professional advice
and assistance that they need so sorely is often difficult for financial or geographical
reasons.’684
Very little has changed for the majority of South Africans since.685 Class actions were therefore allowed
in a range of disputes which include,
- class actions brought by a number of individuals belonging to a particular class of persons;686

- class actions brought by unincorporated voluntary associations; 687 and
- a class action brought by an individual belonging to a class of persons.688
The Constitutional Court has drawn criticism for its ‘most unfortunate’ and ‘vague’ approach to the
interpretation of this sub-section as it opted not to endorse the set of guidelines laid out by the Supreme
Court of Appeal and as such ‘eschewed the need’ for these guidelines.689 The Supreme Court of Appeal
in Trustees of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd690 introduced criteria
683
Mohlomi v Minister of Defence (1996), para 14.
684
Mohlomi v Minister of Defence (1996).
685
See the following surveys conducted:
The South African Human Rights Commission Economic and Social Rights Report of 1998
The Foundation for Human Rights CASE Survey 1998
National Institute for Public Interest Law and Research Study 2000
Human Science Research Council 2001 Public Opinion Survey
Survey on Protection of Human Rights: Perceptions and Awareness 2004
Kimmie, Z & O’Sullivan, G (2015).
686
Permanent Secretary Department of Welfare, Eastern Cape Provincial Government and Another v Ngxuza and
Others (2001); Rail Commuters Action Group and Others v Transnet Ltd T/a Metrorail and Others 2006 (8232/2005)
ZAWCHW 69 (C).
687
Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002 (6) SA 66 (T); Rail
commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others (2006).
688
Coetzee v Comitis and Others 2001 (1) SA 1254 (C).
689
Cheadle, H & Davis, D (2005).
690
Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
(2012).
114
which are considered by some to be useful for the ‘shaping of a coherent jurisprudence of class actions
in the future’.691 However, the Constitutional Court relied upon its inherent jurisdiction692 and declared
‘the interests of justice’ as the criteria for certification.693 In the author’s view, the notion that the
absence of a set of constitutionally endorsed guidelines for certification could lead to ‘(in)coherent
jurisprudence’ is ‘most unfortunate’. The Constitutional Court deemed it wise not to confine itself to a
predetermined set of guidelines for certification. This would be out of sync with the broad approach to
standing endorsed by the court thus far and would not be the interest of justice, especially in view of
the context framed by Didcott J above.
Class actions are also provided for in terms of section 38(d) which allows a public interest litigant to
bring an application on a matter claimed to be of public interest. Such actions refer to ‘a limited
(although not necessarily small) number of similarly situated claimants being represented by one of
their number or another person’.694
After an initial false start to the interpretation of public interest standing by the lower courts, 695 the
Constitutional Court endorsed the dissenting judgement of O’ Regan J696 and set out the criteria for
public interest standing.697 These are,
- whether there is another reasonable and effective manner in which the challenge may be
brought;
- the nature of the relief sought and the extent to which it is of general and prospective
application;
The court held as follows:

Litigants representing a class should apply to court for authority to bring the class action.
The court would be required to certify the action as a class action.
Upon classifying the class action as such, the court would consider ,
-the definition of the class;
-the identification of the common claim or issue that can be determined by the class action; and
-prima facie evidence of the existence of a valid cause of action
- satisfaction that the representative is suitable to represent the members of a class
- whether the class action is the most appropriate procedure under the circumstances. (at paras. 35-43)
691
Davis, D, 'Enforcement of Rights' in Cheadle, H & Davis, D (eds) South African Constitutional Law: Bill of Rights
(2005) Durban, South Africa: LexisNexis South Africa, para 32.3.
692
Section 173.
The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent
power to protect and regulate their own process, and to develop the common law, taking into account the interests of
justice. [S. 173 substituted by s. 8 of the Constitution Seventeenth Amendment Act of 2012.].
693
Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (CCT131/12) ZACC 23.
694
Plasket (2009).
695
Prior v Battle and Others 1999 (2) SA 850.
Maluleke v Member of the Executive Council, Health and Welfare, Northern Province (1999).
696
In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (1995).
697
Lawyers for Human Rights and Other v Minister of Home Affairs and other (2004).
115
- the range of persons or groups who may be directly or indirectly affected by any order made
by the Court and the opportunity that those persons or groups have had to present evidence
and argument to the Court;
- the degree of vulnerability of the people affected;
- the nature of the rights said to be infringed; and
- as well as the consequences of the infringement.698
A litigant, claiming public interest standing therefore, must do so genuinely and the court must satisfy
itself objectively that the proceedings are in the public interest and not merely abstract. However, if it
is in the public interest that the matter be heard, regardless of its abstract nature, it would constitute an
exception to the abstract limitation.699 In spite of the criteria that the Constitutional Court has endorsed,
it nevertheless has adopted a broad approach to public interest litigation.
Section 38(e) appears to be the least controversial of sub-sections. In a departure from the common law
position, it expressly confers standing on an association to litigate on behalf of one, some or all of its
members. The fact that the standing of associations in a number of cases was accepted without
argument, renders the principle well settled.700
Whether section 38 pertains to a wider range of actions than the relief claimed for an infringement of a
fundamental right, remains to be seen. Section 38 confers standing on a broad range of litigants but
seems to do so within the confines of violations or threatened violations of fundamental rights only.
The phrase, ‘alleging that a right in the Bill of Rights has been infringed or threatened, supports this
view. However, the opinion has been expressed that it should not be confined to fundamental rights
only701 and a number of rulings have already alluded to the liberalisation of the common law principles
of standing.702 In two of these cases the common law approach to the standing of unincorporated
voluntary associations was disregarded as these associations sought not only to enforce particular
provisions contained in the Bill of Rights but also the general values entrenched therein.
698
Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Another 2006
(CCT1/06) ZACC 5 (CC), para 21.
699
Lawyers for Human Rights and Other v Minister of Home Affairs and other (2004), para 18.
700
Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (CCT21/96) ZACC 22.
701
Loots, C, 'Standing, ripeness and mootness' in Woolman, S & Bishop, M (eds) Constitutional Law Of South Africa,
2nd ed (2014) Juta.
702
Wildlife and Environment Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism
of the Republic of South Africa and Others 1996 (3) SA 462 (Tk); Highveldridge Residents Concerned Party v
Highveldridge Transitional Local Council (2002).
116
The alignment of the common law with the spirit, purport and objects of the Bill of Rights is a
constitutional imperative.703 It is my view that section 34 could very well assist in providing an avenue
for access to the courts in cases where access is still restricted by the common law principles on
standing. Such a view has already been expressed by Klaaren704 who claims that ‘One interpretation of
s 34 would grant the person whose non-Chapter 2 right was violated a Chapter 2 remedy as part of that
person’s s 34 right of access to the court.’705
Section 34 and customary law
The extent to which customary law should exercise an influence on South Africa’s constitutional
democracy has been a subject of much debate. The Bill of Rights, on the one hand, expressly gives
recognition to customary law whereas, on the other hand, it renders it subject to the Constitution. This
debate reflects, in many instances, the tension between the rule of law(yers) and traditional forms of
dispensing justice.
The incorporation of customary law into the legal system of the country must be viewed against the
backdrop of the subjugation of indigenous cultures in the country through imperialism, colonialism and
apartheid and must be measured against our constitutional imperatives. The preamble to the Cultural
Charter for Africa706 recognises this and states,
‘cultural domination led to the depersonalization of part of the African peoples,

falsified their history, systematically, disparaged and combated African values, and
tried to replace progressively and officially, their languages by that of the colonizer.’
Any attempt to overcome the barriers and increase access to justice in South Africa with its pluralistic
legal system inevitably will have to include measures to incorporate customary law into the
conventional legal system. The Constitution makes express provision for it. Hence the importance of
703
Section 39(2).
704
Klaaren, J, 'Administrative justice' in Constitutional Law Of South Africa, 5th ed (1999) Juta 1.
705
Klaaren, J (1999) p. 25.
706
Organization Of African Unity, Cultural Charter for Africa, (1990).
117
sections 30707 and 31708 read with sections 39(3),709 211710, 212711 and the transitional arrangements in
Schedule 6.712 These provisions, read collectively, firmly entrench customary law as an integral part of
our legal system.
Section 30 guarantees the right of the individual to language and culture and it is reinforced by section
31 which guarantees the rights of the collective to their culture, religion and language. Although these
two provisions do not expressly make reference to customary law, they support the incorporation of
customary law into the Constitution as they provide South Africans, individually and collectively, with
the right to enjoy and participate in a cultural life of their choice. Section 39(3) expressly confirms that
persons may rely on rights conferred by customary law as long as it is in harmony with the Bill of
Rights.
707
‘Everyone has the right to use the language and to participate in the cultural life of their choice, but no one
exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights’.
708
Section 31
(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other
members of that community—
(a). to enjoy their culture, practise their religion and use their language; and
(b). to form, join and maintain cultural, religious and linguistic associations and other organs of civil
society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of
Rights.
709
Section 39.
(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a). must promote the values that underlie an open and democratic society based on human dignity,
equality and freedom;…
(2) When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (own emphasis added)
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or
conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.
710
Section 211.
(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject
to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject to any applicable
legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.
711
Section 212.
(1) National legislation may provide for a role for traditional leadership as an institution at local level on matters
affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the
customs of communities observing a system of customary law— (a) national or provincial legislation may
provide for the establishment of houses of traditional leaders; and
(3) national legislation may establish a council of traditional leaders.
712
Section 16. Every court, including courts of traditional leaders, existing when the new Constitution took effect,
continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office
as a judicial officer continues to hold office in terms of legislation applicable to that office, subject to-
(a). Any amendment or repeal of that legislation; and
(b). Consistency with the Constitution.
118
Chapter 12 of the Constitution gives express recognition to the institution of traditional leaders713 and
the role that it plays in matters affecting local communities.714 The Constitution uses permissive
language when it provides for the enactment of national legislation that entrenches the role of traditional
leaders.715 It thus provides the State with a margin of discretion. However, it uses peremptory language
when enjoining the courts to apply customary law subject to the Constitution and other relevant laws.716
In this instance, the incorporation is a constitutional imperative. However, the distinction might very
well be purely academic as the role of traditional leaders and customary law appear to be inextricably
linked in practice, although traditional leaders are not regarded as the custodians of customary law by
some.717
To date, the focus has been on the conventional courts and the efforts to comply with the constitutional
imperative of incorporating traditional forms of justice encountered various obstacles. Attempts have
been made by the State to establish the substantive legal framework that would pave the way for the
incorporation of traditional systems of dispute resolution into the conventional mould following the
submission of the Law Commissions Report.718 Three key legislative developments are; the Traditional
Leadership and Governance Act,719 the Communal Land Rights Act720 and the Traditional Courts Bill.721
However, this ‘marriage’ has proven to be much more of a challenge than anticipated as some of these
reforms do not sit well with core constitutional imperatives. The South African Human Rights
Commission has therefore introduced its commentary on the Traditional Courts Bill as follows:
‘Now African customary law within our new African constitutionalism will need to
face the challenge of recognition alongside all other laws and procedures and survive
the test of constitutionality to remain part of our democratic constitutional state founded
upon values of human dignity, the achievement of human rights and freedoms, non-
racialism, non-sexism and the supremacy of the constitution.’722
713
Section 211.
714
Section 212.
715
Section 212.
716
Section 211(3).
717
Council for the Advancement of the South African Constitution (CASAC).
718
South African Law Commission, Traditional Courts and the Judicial Function of Traditional Leaders: Discussion
Paper 82 (Project 90), (1999) Pretoria, South Africa: Department of Justice and Constitutional Development.
719
Traditional Leadership and Governance Act, 41 of 2003.
720
Communal Land Rights Act, 11 of 2004.
721
Traditional Courts Bill [B1-2012] (2012).
722
Para 3 (footnotes omitted).
119
The long title of the Traditional Courts Bill affirmed a traditional justice system that is based on
restorative justice and conciliation, seeking to enhance customary law.723 The Traditional Leadership
and Governance Framework Act has been criticised for perpetuating apartheid boundaries and the
Traditional Courts Bill met with severe resistance. Resistance to the Bill emanated from various
quarters, including the South African Human Rights Commission, The Law Society of South Africa,
Council for the Advancement of the South African Constitution and the Minster of Women, Children
and People with Disabilities.724 The resistance exposed the tension between the institution of traditional
leaders and the sovereignty of the Constitution. The Bill came under fire for being unclear on the nature
of the judicial structure that it aimed to establish, centralising too much executive, legislative and
judicial decision-making power in traditional leaders, perpetuating patriarchal values that permeated
traditional communities, perpetuating apartheid boundaries, failure to allow for an opt-out clause,
compelling persons who do not recognise a traditional leader as legitimate to submit to his authority for
dispute resolution, bestowing powers on traditional leader to remove people’s property rights as
punishment and perpetuating the legal segregation and second-class citizenship imposed by the
Bantustans.725
The South African Human Rights Commission raised a number of constitutional concerns about the
Bill.726 The first relates to the nature of the adjudicating mechanism described as ‘traditional courts’.
The lack of clarity as to whether these structures were courts as described by Chapter 8 of the
Constitution or other tribunals or fora727 raised questions about the constitutionally recognised rights of
parties to the proceedings in these fora. The right to legal representation, for example, was expressly
outlawed by the Bill.728 It also raised the question as to whether these ‘courts’ had to meet the same
constitutional standards and norms for adjudicating bodies such as the right to a fair and public trial.
The second concern relates to the language and the framework of the Bill which makes it susceptible to
Roman-Dutch, British and more recent constitutional transplants. The Commission advised that these
transplants distort the traditional system that the Bill seeks to entrench and may result in constitutional
723
‘To affirm the recognition of the traditional justice system and its values, based on restorative justice and
reconciliation; to provide for the structure and functioning of traditional courts in line with constitutional imperatives
and values; to enhance customary law and the customs of communities observing the system of customary law; and to
provide for matters connected therewith’.
724
Aninka Claassens, Summary and Analysis of the Traditional Court Bill [B 15 – 2008], (2008) Cape Town, South
Africa: University of Cape Town.
725
Aninka Claassens (2008).
726
Traditional Courts Bill [B 1—2012].
727
As provided for in section 34.
728
Clause 9 (3) (a) No party to any proceedings before a traditional court may be represented by
a legal representative.
120
guarantees being ignored or denied.729 A further concern has been expressed by the Commission that
the sanctions are too broad and may involve violations of fundamental rights such as the right against
forced labour.730 It also advised that the rights of children are not adequately protected.731
It was therefore clear that the Bill would not pass constitutional muster and it ultimately lapsed.
However, the matter did not end there as the Department of Justice and Correctional Services
commenced a new round of consultations on the Traditional Courts Bill in 2015.732 The most significant
development for the paralegal is the insertion of clause 17.(1)(k) which empowers the Minister of Justice
and Correctional Services to enact legislation that allows for the functioning of paralegals in the
traditional courts.733 This signifies that there is the realisation on the part of law makers that the
alignment of customary forms of dispute resolution with the Constitution in theory and in practice will
not be achieved without some form of legal assistance. Traditional dispute resolution fora are
particularly prevalent in the rural areas. One of the barriers to access to justice is the concentration of
lawyers in the urban areas while the rural areas remain underserviced. The community-based paralegal
has filled part of the gap in the delivery of access to justice in rural areas, and should the Bill be passed
in its current form, paralegals will be given express recognition as practitioners of the law in South
Africa.734
Moreover, Langa DCJ in Bhe v Khayelitsha Magistrate735 captured the view of the Constitutional Court
in respect of customary law as follows:
‘The Constitution itself envisages a place for customary law in our legal system.
Certain provisions of the Constitution put it beyond doubt that our basic law
specifically requires that customary law should be accommodated, not merely
tolerated, as part of South African law, provided the particular rules or provisions are
not in conflict with the Constitution.'736
729
Para 22.
730
Para 31.
731
Paras 43,44,74.
732
Policy Dialogue on Traditional Courts Reform Advancing Restorative Justice 4 December 2015 Birchwood Hotel,
Boksburg.
733
Traditional Courts Bill [Bill-2017].
734
See Chapter 9.
735
Bhe and Others v Khayelitsha Magistrate and Others (2004).
736
At para 41.
121
In addition, the South African Human Rights Commission stated emphatically that it ‘recognises the
institution, status and the role of customary law’.737 It clarified its comments on the Traditional Courts
Bill as follows:
‘The current debates around the Bill are thus not about the integrity and/or legitimacy
of the traditional court system but rather to determine the manner in which this
recognition should be reflected in legislation within our constitutional democracy’.738
There is therefore no question that the traditional dispute resolution mechanisms will be introduced into
the South African legal system. It is essential to bridging the gap between the law and the people. If
done so properly, South Africa would once more establish itself as a contender on the African continent
for its creative and bold way in which it marries the contradictions that make up the rich tapestry of its
rainbow nation in order to deliver access to justice. Considering the role that the community-based
paralegal could play in providing safeguards in the traditional courts may very well address some of the
constitutional concerns raised by the Human Rights Commission and others.
Section 34 and other leverage rights
Section 34 is also in a tripartite alliance with sections 32739 and 33,740 which are all considered to be
leverage rights. Such rights have as its purpose enabling litigants to enforce the substantive rights to
which they have a claim.
737
Traditional Courts Bill [B1 – 2012] SAHRC Submission to the National Council of Provinces, 15 February 2012,
(2012) Braamfontein: South African Human Rights Commission p. 6.
738
Traditional Courts Bill [B1 – 2012] SAHRC Submission to the National Council of Provinces, 15 February 2012
(2012).
739
Section 32
(1) ‘Everyone has the right of access to-
(a). any information held by the state; and
(b). any information that is held by another person and that is required for the exercise or protection of
any rights
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to
alleviate the administrative and financial burden on the state’
740
Section 33
(1) Everyone has the right to administrative action that is lawful, reasonable and
(a). procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has
(a). the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must—
(a). provide for the review of administrative action by a court or, where appropriate, an independent
and impartial tribunal;
(b). impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c). promote an efficient administration.’
122
The Constitution firmly entrenches a distinct right of access to information. The inclusion of this right
in the Bill of Rights must be viewed, on one level, against the backdrop of the transition from an
authoritarian State that exercised its power brutally and arbitrarily, to a democratic order in which
government is required to act in a transparent manner and held accountable for its actions. Section 32
provides individuals with an unfettered right of access to information held by the State subject only to
the limitation clause.741 It thus imposes a greater burden on the State than on private entities. Section
32 therefore has vertical application as it applies to all public institutions, including private entities that
exercise public power or perform public functions on behalf of the State.742
On another level, the lack of access to information on matters that directly affect the rights of an
individual has a disempowering effect and places that individual at a distinct disadvantage. This
information is not only held by the State but also by private individuals. Section 32 assists in levelling
the playing field. In this regard, it has horizontal application as it provides for access to information
held by private individuals and entities.743 This right is subject to the qualification that such information
is required to enable the requestor to enforce or protect his or her rights. The Constitution therefore
expressly commands the enactment of legislation to give effect to this right. Hence, the Promotion of
Access to Information Act744 has been enacted and implemented.
The long history of abuse of power by the State also necessitated the entrenchment of fundamental
principles of administrative law with the aim to prevent a repeat thereof. The right to procedurally fair
administrative action is therefore contained in section 33(1).745 This provision entrenches the common
law rules of natural justice which are given expression through the maxims audi alteram partem and
nemo iudex in sua causa. It is considered to ensure procedural fairness when administrative decisions
are made that affect other substantive rights. It is therefore the legality and not the wisdom of the
conduct that the adjudicator determines. 746
Lawfulness requires that administrators comply with the law and derive their authority for their
decisions from the law. Section 33(1) outlaws the ousting of the court’s constitutional jurisdiction or
its review function over the lawfulness of administrative action. It further alters the common law
position which hampered the review of unreasonable administrative action in the past. It thus
741
Section 32(1)(a).
742
Section 1 of the Promotion of Access to Information Act, 2 of 2000.
743
Section 32(1)(b).
744
Promotion of Access to Information Act, 2 of 2000.
745
Section 33(1).
746
Woolman, S, Bishop, M, Chaskalson, M, et al 2006 Woolman, S Bishop, M Chaskalson, M et al (2006).
123
introduced a ‘full-blown rationality review’.747 Moreover, an enquiry into the reasonableness of an
administrative decision doesn’t require the court to determine whether the decision was correct or not
but whether the decision was justifiable.748 Section 33(2) confers the right on persons to compel the
State to provide written reasons where an administrative action has affected their rights adversely. This
right, like the right to information, is regarded as a substantive rights-determining tool and is available
to anyone whose rights have been adversely affected by the administrative action.749 This provision
further directs the State to enact legislation to give effect to the rights contained in it750 and requires
legislation so enacted to provide for judicial review of administrative action.751 Enacted legislation
must also serve to promote an efficient administration.752 Hence, the Promotion of Administrative
Justice Act (PAJA) has been enacted.753
Although these leverage rights mainly constitute a procedural remedy, together they are designed to
ensure meaningful access to procedural and substantive justice. However, the lack of awareness of key
human rights-related legislation such as PAJA among respondents in the AJCPR Baseline Survey raises
serious concerns.754 This points to a complete disconnect between these components of the statutory
framework of access to justice and its intended beneficiaries, in other words, between the law and the
people, which is a gap that cannot be left unattended.
5.3. THE NATURE AND APPLICATION OF THE RIGHT OF ACCESS TO THE COURTS,
TRIBUNALS AND OTHER DISPUTE RESOLUTION FORA
The right of access to the courts and other dispute resolution mechanisms constitutes the fulcrum on
which the protections and guarantees provided for in the Bill of Rights turn. This right is not only limited
to disputes related to human rights but also, in the case of section 34, all (civil) disputes that can be
settled by application of law. It is thus intended to protect the individual against the capricious and
subjective decision making and conduct of an adversary and the injustice that may ensue as a result.
Section 34 first, confers upon everyone the right to have disputes settled before a court. Secondly, it
expressly guarantees the right to a fair and public hearing. Thirdly, it provides for the option to have
747
De Waal, J, Currie, I & Erasmus, G, The Bill of Rights Handbook, 6th ed, (2013) Cape Town, South Africa: Juta p.
55.
748
De Waal, J, Currie, I & Erasmus, G (2013).
749
Section 33(2).
750
Section 33(3)(b).
751
Section 33(3)(a).
752
Section 33(3)(c).
753
Promotion of Administrative Justice Act, 3 of 2000.
754
Only a small minority(10%) was able to identify this statute (Kimmie, Z & O’Sullivan, G (2015) p. 12.).
124
the right to a fair and public hearing exercised in an independent and impartial tribunal. Finally, it
confers the right of appropriate relief, which will not be discussed in this study as the focus is on a
procedural remedy and not a substantive one.755
Upon considering the application of this right, the first query that arises is, who are the beneficiaries
and who bear the responsibilities that are imposed by the right. This triggers a number of questions
relating to, among others, the nature of the right, the standing of the different bearers of this right,
whether it applies to criminal matters and whether it applies exclusively to disputes capable of resolution
by the application of law. Each of these aspects will be examined below.
The nature of the right
Section 34 imposes a range of positive and negative obligations on the State, and limited negative
obligations on private persons. The State has a positive obligation to protect, promote and fulfil the
right of access to the courts imposed by section 34 and does so primarily by establishing the substantive
legal framework and the institutions, human resources and infrastructure. However, this obligation
extends beyond the mere provision of dispute resolution mechanisms. The State has an obligation to
provide an effective remedy and ensure enforcement thereof, in other words, meaningful access to the
dispute resolution mechanisms and reparation.756 This positive obligation extends to an obligation to
provide legal assistance under certain circumstances.757
The State’s negative obligation in essence encompasses the duty to refrain from restricting access to the
courts. As a result, the State is required to refrain from interfering with the independence of the
judiciary and enacting legislation that ousts the jurisdiction of the court in a manner that cannot be
permitted. The query into whether access to the courts has been limited, has consistently, albeit at times
only in theory, been regarded as distinct from the justification for the limitation.758 Section 34 contains
no inherent limitation to access other than that of ‘any dispute that can be resolved by the application
of law’. Hence, the right of access to the courts is by and large, unfettered, and may only be limited in
accordance with section 36 of the Constitution. However, this does not apply to appeals as the
Constitutional Court has ruled that,
755
Although it may be argued that a procedural and substantive remedy are inextricably linked.
756
757
See Chapter 6.
758
Bilchitz, D, 'How should rights be limited?: regspraak', (2011), 3, Tydskrif Vir Die Suid-Afrikaanse Reg, pp. 568–
579.
125
‘whatever the scope of section 22 [the predecessor of section 34], it cannot be said that
a screening procedure which excludes unmeritorious appeals is a denial of a right of
access to a court.759
Section 34 also has horizontal application in that it imposes, in some instances, a negative obligation
on private persons to respect the right of access to the courts and not to interfere with the fairness of
judicial proceedings.
The bearers of the right
Section 34 expressly confers the right of access to the courts upon “Everyone” and natural persons are
the universal holder of this right. However, whether a juristic person is the bearer of this right was not
clear from the outset.
5.3.2.1. Natural persons
Section 34 extends the right of access to the courts to every person within the jurisdiction of the courts,
regardless of his or her status. This includes citizens, residents, visitors and undocumented migrants.760
The entitlement of natural persons to this right has been well settled in jurisprudence from the outset
and doesn’t require further discussion. However, this has not been so for juristic persons.
5.3.2.2. Juristic persons
Section 34 read with section 8(4) of the Constitution makes it clear that the Constitution intended for
this right to be conferred on juristic persons on merit. Section 8(4) provides that ‘a juristic person is
entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature
of that juristic person’. This in essence indicates that the application of section 34 to juristic persons
will be determined through an interlocking enquiry into the nature of the juristic person and the nature
of the substantive right that has allegedly been violated.
It is self-evident that there are some rights that cannot be exercised by a juristic person due to the nature
of the right and the manner in which it is formulated.761 On the other hand, there is constitutional
759
Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice Intervening) 1996
(CCT34/95) ZACC 8.
760
Tettey and Another v Minister of Home Affairs and Another 1999 (1) BCLR 68 (D).
Mohamed and Another v President of the Republic of South Africa and Others 2001 (CCT17/01) ZACC 18 (CC).
761
Cheadle, H & Davis, D (2005), para 3.6.2.
126
justification for the recognition of juristic persons as bearers of the right to equality, privacy, freedom
of religion, belief and opinion, freedom of assembly, property, education, access to information,
freedom of expression, association and labour relations, just administrative action and, most
importantly, access to the courts and the right to a fair hearing.762
Bearing in mind that the right of access to the courts is the fulcrum for the enforcement of all other
rights, a blanket denial thereof in the case of juristic persons will not withstand constitutional scrutiny.
There is support in foreign law for the principle that all public and private juristic entities are entitled,
at the very least, to the protection of certain procedural guarantees such as the right to access to the
courts and a fair hearing.763
Although the Constitution does not define the concept ‘juristic person’, section 8(4) applies, as a matter
of principle, to all entities that have juristic personality in South African law. It would therefore, in the
first instance, apply to all private juristic entities.764 However, the view has been expressed that public
juristic entities that exercise only public power cannot benefit from the rights in the Bill of Rights in
their relations with private persons (natural and juristic) or among themselves.765 The reason advanced
for this is that they are the primary institutions against which the Bill of Rights provides protection.
Nevertheless, an enquiry into the nature of the public entity and the nature of the right might very well
result in a finding that the entity is indeed the bearer of the right at issue. Examples of this include,
among others, the right to freedom of expression to which a public broadcaster is entitled and the right
to just administrative action at the hands of provincial and national government, to which a municipality
is entitled.766
Moreover, the courts have ruled consistently that juristic persons are entitled to the rights in the Bill of
Rights taking into consideration the nature of the right and the nature of the juristic person.767 The
These include the right to human dignity, life, freedom and security of the person, protection against slavery, servitude
and forced labour, political rights, citizenship rights, environmental rights and the rights to housing, health care, food,
water, social security and children.
762
763
Cheadle, H & Davis, D (2005), para 1A80.1.
764
Cheadle, H & Davis, D (2005), para 1A21.
765
766
767
Government of the Republic of South Africa v “Sunday Times” Newspaper 1995 2 SA 221(T) 1995 (2) SA 221
(T).(the right to freedom of speech and expression).
Ynuico Ltd v Minister of Trade and Industry and Others 1996 (CCT47/95) ZACC 12. (the right to free economic
activity)
Bernstein and Others v Bester NO and Others 1996 (CCT23/95) ZACC 2, paras 69, 85.
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others
In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (2000), para 18. (right to privacy)
127
Constitutional Court in essence settled the matter when it ruled that the failure to extend constitutional
rights to juristic persons ‘undermine(s) the very fabric of our democratic state.’768 Hence, a refusal to
allow a juristic person to be represented in court by its alter ego,769 was ruled to amount to a denial of
the right of the entity to be heard.770
The principle that the right of access to the courts and a fair hearing applies to juristic entities is thus
well settled in our law. Juristic persons, as a result, have the right to legal representation, which may
include, in certain circumstances, the right to legal assistance at the expense of the State.
Section 34 and criminal matters
In S v Pennington771 the court indicated that criminal proceedings are generally not regarded as
‘disputes’. Such proceedings are thus excluded from the ambit of section 34. It is argued that section
35 governs the criminal proceedings related to the arrest, detention, conviction or sentence of an accused
person.772 Other matters that may be classified as ‘any dispute’ are governed by section 34. 773
Disputes that can be resolved by the application of law
The fact that the disputes must be capable of being resolved by the application of the law is the only
internal requirement imposed on the right of access to the courts in terms of section 34. The final
Constitution altered the wording of the interim Constitution774 which referred to ‘justiciable disputes’.775
However, the opinion has been expressed that the alteration is in all probability a reflection of the policy
of the drafters to use ordinary language rather than to move away from the restrictive effect of
justiciability.776 Therefore, in essence, only one question needs to be answered, namely, ‘whether legal
First National Bank of SA Limited T/a Wesbank v Commissioner for the South African Revenue Services and Another;
First National Bank of SA Limited T/a Wesbank v Minister of Finance 2002 (CCT19/01) ZACC 5, paras 44–45. (right
to property)
National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others 2002
(CCT2/02) ZACC 27, paras 38–39. ( right to fair labour practices)
Manong and Associates (Pty) Ltd v City Manager, City of Cape Town and Another 2008 (9934/2005) ZAWCHW 62,
para 31. (right to equality).
768
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (2000), para 18., cited with
approval in First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services
and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (2002).
769
In casu, the sole member of the close corporation.
770
Navy Two CC v Industrial Zone Ltd 2005 (293/2004) ZASCA 92 (SCA).
771
S v Pennington and Another 1997 (CCT14/97) ZACC 10.
772
Brickhill, A & Friedman, J (2006) p. 14,15.
773
For example extradition cases.
774
Constitution of the Republic of South Africa, 200 of 1993.
775
Section 22 read, ‘[e]very person shall have the right to have justiciable disputes settled by a court of law or, where
appropriate, another independent and impartial tribunal’.
776
Loots, C 1999 Loots, C (1999).
128
rules exist in terms of which disputes concerning enforceability, justifiability and pre-existing rights
may be resolved’.777 The parties must therefore satisfy the court that there are established legal rules
which can be used to resolve the dispute.778 Due to the interrelatedness between this inherent
requirement and the key feature of access to the courts, further discussion on this is reserved for when
the content of the right of access to the courts is discussed below.
5.4. THE CONTENT OF THE RIGHT OF ACCESS TO THE COURTS, TRIBUNALS AND
OTHER DISPUTE RESOLUTION FORA
Section 34 contains four inherent components, namely, the right of access to the courts, the right to a
fair public hearing before such courts, the right, where appropriate, to have one’s dispute resolved in
another independent and impartial tribunal and forum, and the right to enforcement of an effective
remedy. This section is regarded as ‘an express constitutional recognition of the importance of the fair
resolution of social conflicts by impartial and independent institutions’.779 Each of the four inherent
components will be examined below.
Access to the courts
The guarantee that complainants may bring their dispute before an adjudicating body is considered to
be the most prominent feature of section 34.780 This right is unfettered but for the limitations permitted
by the limitation clause. It therefore stands to reason that where the State does not fulfil the right of
access to the courts in the case of justiciable disputes, it is ‘prima facie in breach of its duties under the
Constitution’ and will have to justify this breach.781 A right without a remedy is illusory as it is reduced
to a mere privilege and in our democratic order section 34 is the leverage that the individual has to make
that right a reality. Mokgoro J espoused the Constitutional Court’s view as follows:
‘A trial or hearing is not an end in itself. It is a means of determining whether a legal

obligation exists and whether coercive power of the state can be involved to enforce an
obligation or prevent an unlawful act being committed.’782
777
Cheadle, H & Davis, D (2005), para 1A80.1.
778
Brickhill, A & Friedman, J (2006).
779
Zondi v MEC for Traditional and Local Government Affairs 2004 (CCT73/03) ZACC 19 (CC), para 61.
780
Woolman, S Bishop, M Chaskalson, M et al (2006), pt II. The Bill of Rights para 59.4 (a).
781
Budlender, G, 'Access to courts', (2004), 121(2), The South African Law Journal, pp. 339–358.
782
Lesapo v North West Agricultural Bank and Another (1999), para 11.
129
She further held that access to the courts serves a purpose beyond the above, in that it ‘institutionalises
the resolution of disputes’ and ‘prevents remedies being sought through self-help’783
Ngcobo J also highlighted the importance of access to the courts and held:
‘S34, therefore, requires not only that individuals should not be permitted to resort to
self-help, but it also requires that potentially divisive social conflicts must be resolved
by courts or other independent and impartial tribunals. Section 34 recognises that it is
important to do so to ensure that orderly and fair solutions to such conflicts are found,
to promote social cohesion and to avoid the exacerbation of divisions and
unfairness.’784
In essence, a litigant must be given an ‘adequate and fair’ opportunity to approach the courts or other
fora for relief.785 Accordingly, a denial of such opportunity would amount to a denial of the right of
access to the courts. However, this does not mean that the applicant can approach just any court for
relief. This requirement is satisfied if the applicant had a ‘real and fair’ opportunity to approach ‘a court
of competent jurisdiction in the hierarchy for relief.’786
A rather curious development occurred in Zondi when Ngcobo J by stating the following, went beyond
emphasising the pivotal nature of the right of access to the courts by introducing criteria for access that
are neither expressly, nor implicitly, contained in section 34:
‘Determining whether it is necessary for such conflicts to be brought before courts will
require a consideration of the potential for social conflict in relation to the particular
matters concerned, the equality of arms of the parties that are likely to be involved in
the conflict, and the practicalities of requiring such matters to be resolved by courts,
among other things.’787
Section 34 does not require applicants to convince the court that a claim is ‘enforceable’ or ‘justifiable’
or that it is based on a ‘pre-existing right’.788 On the contrary, the only requirement for access to the
783
Lesapo v North West Agricultural Bank and Another (1999).
784
Zondi v MEC for Traditional and Local Government Affairs (2004), para 63.
785
See the discussion on the ‘fair and adequate’ opportunity test under Limitations below.
786
Dormehl v Minister of Justice and Others 2000 (CCT10/00) ZACC 4 (CC).
787
At para 63 (own emphasis added).
788
Contra Road Accident Fund v Makwetlane 2005 4 SA 51 (SCA), paras 45–47.
Engelbrecht v Road Accident Fund and Another 2007 (CCT57/06) ZACC 1 (CC), paras 21–24.
130
courts is that the dispute must be capable of resolution by application of law. Considering the above
dictum of Mokgoro J, the criteria identified by Ngcobo J are clearly not pre-requisites for determining
access to the courts and other fora. The primary purpose for seeking access is for a competent,
independent and impartial tribunal to determine whether a legal right exists and/or whether there is a
breach thereof and, if there is, whether there is any justification for the breach, if not, to prescribe a
remedy that is enforceable.
The importance of having access to adjudicating mechanisms that have the necessary authority to settle
disputes in a fair manner, is beyond dispute. A limitation of this right will therefore have to withstand
the constitutional scrutiny of the limitation clause. The key feature of fairness will now be considered.
Fair hearing
Section 34 expressly guarantees the right to a public hearing that is qualified by the fairness thereof.
However, although fairness is a central theme of the South African constitution, what constitutes
fairness varies, depending on the nature of the proceedings.789 The decision in Bernstein v Bester790
implied that the absence of any reference to the right to a fair hearing in the Interim Constitution
signalled the intention of the drafters not to constitutionalise the right to a fair civil hearing. This was
remedied in the final constitution as section 34 expressly introduces fairness and publicity into the
nature of the proceedings. The Court in Mohlomi v Minister of Defence ruled that a party to the
proceedings must be ‘afforded an adequate and fair opportunity to seek judicial redress for wrongs
allegedly done to them.791 The court found that where the claimants were left with inadequate time
within which to give the requisite notices and to sue, their rights in terms of section 22 of the Interim
Constitution were infringed.792 Barkhuizen v Napier re-affirmed the ‘adequate and fair’ opportunity
test formulated in Mohlomi and held that ‘…the requirement of an adequate and fair opportunity to seek
judicial redress is consistent with the notions of fairness and justice which inform public policy.’ 793
Fairness, under section 34, has both a substantive and procedural component. In Van Huysteen and
Others NO794 the court held that the right to a fair public hearing requires ‘procedures…which in any
particular situation or set of circumstances, are right and just and fair.’ Also, in De Lange v Smuts NO
789
See sections 9, 23, 33 and 35 of the Constitution of South Africa,1996.
790
Bernstein and Others v Bester NO and Others (1996).
791
Mohlomi v Minister of Defence (1996), para 14.
792
793
Barkhuizen v Napier 2007 (CCT72/05) ZACC 5 (CC), para 52.
794
Van Huysteen and Others NNO v Minister of Environmental Affairs and Tourism and Others 1996 (1) SA 283
(CPD), para 304 G-H.
131
and Others795 the Constitutional Court stated that ‘[a]t the heart, fair procedure is designed to prevent
arbitrariness in the outcome of the decision’ and that ‘…any procedure that touches on a vital human
interest…points in the direction of a violation’.796
Fairness, at a most basic level, must comply with a minimum standard of justice if it is to serve as a
safeguard against injustice.797 This minimum standard of justice include
‘equal treatment before the courts during a hearing, that the decision-maker should not
be a judge in her own cause, should not be actuated by bad faith, improper motive or
preconceived view, adherence to audi alteram partem, the provision of proper notice to
a person of the allegations against her, the right to legal representation, or at least
adequate representation of an equivalent nature’.798
The right to equality is therefore at the heart of the fairness requirement in section 34. The equality
clause in the Constitution expressly guarantees, among others, the right to equality before the law, the
right to be equally protected by law, the right to equally enjoy the benefits of the law, and the right not
to be unfairly discriminated against on grounds including those listed.799 The preamble and founding
provisions super-entrenches this right. Fairness within this context therefore encompasses the right to
equal access to and treatment by the courts, including procedural fairness and expeditiousness, the right
to legal advice and representation, publicity of proceedings and its results, independence and
impartiality. Individuals must therefore be afforded an ‘adequate and fair’ opportunity to enforce their
rights. Any form of discrimination on listed and other grounds that prevent access to the courts and are
not justifiable under the Constitution, should therefore not be tolerated. Equality before the courts also
implies that a litigant is entitled to meaningful participation in the proceedings, which may, under
certain circumstances give rise to the right to legal assistance at the expense of the State.
Albertyn and Goldblatt argue that equality of the legal process is not rationality but fairness. As a
consequence, a finding of unfairness would preclude a justification enquiry.
Section 34 also entrenches the principles of natural justice. The audi alteram partem principle requires
that both parties to the dispute must be given a fair opportunity to be heard. Parties must therefore be
795
De Lange v Smuts NO and Others 1998 (CCT26/97) ZACC 6, para 131.
796
De Lange v Smuts NO and Others (1998).
797
Beinart, B, De Vos, W, Price, TW, et al, Acta Juridica, (1962) Cape Town, South Africa: University of Cape Town
p. 118–120.
798
Cheadle, H & Davis, D (2005), para 28.3.
799
Section 9.
132
given adequate time to prepare, lead and challenge evidence. The courts therefore have extensive rules
on service and notice relating to civil proceedings. Non-compliance with these rules has a bearing on
the fairness of the subsequent proceedings and may constitute an unfair limitation on the right to a fair
and public hearing.800 The Constitutional Court in De Lange highlighted the importance of this principle
of natural justice saying that,
‘(e)veryone has the right to state his or her own case, not because his or her version is
right, and must be accepted, but because, in evaluating the cogency of any argument,
the arbiter, still a fallible human being, must be informed about the points of view of
both parties in order to stand any real chance of coming up with an objectively
justifiable conclusion that is anything more than chance’.801
Where a party, therefore, whether by design or default, was not represented at a hearing that affects his
or her rights, it implicates the right of access to the court. The Constitutional Court thus considered
reasonable notice to be a requirement for a fair hearing802 and disallowed ex parte applications where it
unjustifiably did not give effect to the audi alteram partem principle.803 The other aspects of fairness,
namely, publicity of the hearing and independence and impartiality of the tribunal, will be discussed
next.
Public hearing
Section 34 imposes no inherent limitation on the right to a public hearing, which includes both publicity
of the hearing as well as the publication of the outcome of the hearing. This implies that any limitation
to this right must survive a section 36 scrutiny. The right to a fair public hearing in section 34 as well
as a public trial in section 35 gave rise to the principle of ‘open justice’ which enjoys Constitutional
Court endorsement.804 The Constitutional Court advised that
800
The court emphasised the pivotal nature of the audi alteram partem principle to the extent that it considered it
inappropriate to review a decision of a lower court without notice to all parties, including the magistrate of the court a
quo (Davids and Others v Van Straaten and Others 2005 (901/05) ZAWCHW 16 (C).)
The Constitutional Court ruled that the substantive and procedural fairness requirement of the right to a fair public
hearing has not been satisfied as a ruling has been handed down to party who was not cited as a responded to the
proceedings. (Stopforth Swanepoel and Brewis Incorporated v Royal Anthem Investments 129 (Pty) Ltd 2014
(CCT63/14) ZACC 26 (CC). )
801
At para131.
802
De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic
Association Intervening) 2001 (CCT59/00) ZACC 9 (CC).
803
National Director of Public Prosecutions v Mohamed NO and Others 2003 (CCT44/02) ZACC 4 (CC).
804
South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others 2006
(CCT58/06) ZACC 15 (CC).
133
‘(c)ourts should in principle welcome public exposure of their work in the courtroom,
subject, of course, to their obligation to ensure that the proceedings are fair. The…
values of accountability, responsiveness and openness…underpin both the right to a
fair trial and the right to a public hearing. The public is entitled to know exactly how
the Judiciary works and to be reassured that it always functions within the terms of the
law and according to time-honoured standards of independence, integrity, impartiality
and fairness’.805
This dictum was subsequently reaffirmed when the Constitutional Court struck down a provision in the
Criminal Procedure Act806 which allowed for criminal appeals to be held in chambers. Yacoob J
articulated the view of a unanimous court as follows:
‘It is important that this deviation from the rule of law, fairness and justice be fully
understood. The section makes dangerous inroads into our system of justice which
ordinarily requires court proceedings that affect the rights of parties to be heard in
public…Far from having any merit, the provision is inimical to the rule of law, to the
constitutional mandate of transparency and to justice itself…Closed court proceedings
carry with within them the seeds for serious potential damage to every pillar on which
every constitutional democracy is based’807.
This principle, in essence, constitutes a cluster of rights, namely the right to a fair trial, freedom of
expression and the right of access to the courts.808 In a prologue to the much publicised criminal trial
of the paralympian, Oscar Pistorious, the principle of ‘open justice’ was pushed to new limits when
media organisations for the first time were allowed to broadcast a criminal trial live in South Africa.809
Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius, In
Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others 2014 (10193/2014)
ZAGPPHC 37.
805
Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius,
In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others (2014), para 32.
806
Criminal Procedure Act, 51 of 1977.
807
S v Shinga (Society of Advocates (Pietermaritzburg)) as Amicus Curiae) , S v O’Connell and Others 2007
(CCT56/06) ZACC 3 (CC), para 25.
808
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus
Curiae) In Re: Masetlha v President of the Republic of South Africa and Another 2008 (CCT38/07) ZACC 6.
809
Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius,
In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others (2014).
134
In arriving at this ground breaking decision, Mlambo JP performed a balancing act between the
paralympian’s right to a fair trial, the right of the media organisations to freedom of expression and the
interest of justice.810 It was clear from the outset that the public’s right to access the proceedings was
uncontested. The judge indicated that
‘…it is necessary to keep in mind that in the open democratic society envisaged by our
Constitution and “in which the public have a right of access to the workings of the
judicial system”, the issue is not whether the electronic, broadcast or print media -
should be allowed to cover court proceedings, “but how guarantees can be put in place
to ensure that the public is indeed well informed about how the courts function” when
dealing with proceedings before them.’811
The right to a fair trial and freedom of expression are competing rights that affect the principle of ‘open
justice’ with mutually limiting effects on each other. The court applied the following test formulated in
Midi Television Pty Limited v Director of Public Prosecutions:812
‘Where constitutional rights themselves have the potential to be mutually limiting – in

that the full enjoyment of one necessarily curtails the full enjoyment of another and
vice versa – a court must necessarily reconcile them. They cannot be reconciled by
purporting to weigh the value of one right against the value of the other and then
preferring the right that is considered to be more valued, and jettisoning the other,
because all protected rights have equal value. They are rather to be reconciled by
recognising a limitation upon the exercise of one right to the extent that it is necessary
to do so in order to accommodate the exercise of the other (or in some cases, by
recognising an appropriate limitation upon the exercise of both rights) according to
what is required by the particular circumstances and within the constraints that are
imposed by s 36.’813
This test calls for a harmonising interpretation of the right to freedom of expression and the right to a
fair trial, taking into consideration the surrounding circumstances and the limitations imposed on both
rights by the limitation clause. Hence the Judge President ruled that,
810
At paras 6-18.
811
At para 20 (own emphasis added) (footnotes omitted).
812
Midi Television T/a E-TV v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56 2007 (100/06)
ZASCA 56 (SCA).
813
At para 9.
135
‘[a]t this day and age I cannot countenance a stance that seeks to entrench the workings
of the justice system away from the public domain. Court proceedings are in fact public
and this objective must be recognized.’814
Jurisprudence therefore shows that the likelihood of an infringement of this right being tolerated by the
courts would be rare and under extreme circumstances as the public’s access to the proceedings is an
important factor in building credibility in the judiciary. The court in S v Mambolo815 thus stated that
‘…informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of
the important attributes prescribed for the judiciary by the Constitution.’816 Instances under where this
right may be limited include ‘the testimony of child witnesses, sensitive family matters, confidential
information implicating national security or public security interests and criminal matters involving
sexual offences.’817
The publicity of a trial is therefore inextricably linked to ensuring that a perception of bias is not fuelled
by secrecy and that the workings of the judiciary are subjected to public scrutiny. The Courts therefore
set a premium on public access to its proceedings and will not limit this lightly.
Another independent and impartial tribunal
Section 34 expressly makes provision for access to adjudicating bodies other than conventional courts,
by providing, ‘where appropriate’, for the alternative of ‘another independent and impartial tribunal’.
The question as to where a tribunal may be appropriate has been considered by the Constitutional
Court.818 The Court has ruled it inappropriate for a tribunal that is not presided over by a judicial officer
to be authorised to rule on matters where a person’s liberty is affected.819 It thus struck down section
66(3) of the Insolvency Act820 as it impugned section 34. It has therefore been established that criminal
as well as administrative proceedings (with the exception of ouster clauses) fall outside the purview of
section 34 as these are governed by sections 33 and 35.
814
At para 22.
815
S v Mamabolo 2001 (CCT44/00) ZACC 17.
816
At para 29.
817
818
819
820
24 of 1936.
136
Section 34 allows for specialist tribunals and other fora to be established and the state has given effect
to it over the years in order to increase access to the ‘courts’, especially in civil matters. 821 The
proceedings at these tribunals also need not mirror those of a court of law and are thus more flexible.
Hence an internal disciplinary hearing, for example, was permitted to be held in camera822 and it was
stated that a greater range of evidence, including hearsay, is permitted in, for example, commissions of
inquiry.823 However, bearing in mind that the right of access to the courts is part of the wider principle
of the rule of law, these fora must nevertheless meet the minimum standards of justice, otherwise their
operations might not pass constitutional muster. The High Court in Magidiwana v President of the
Republic applied this principle to a commission of inquiry and held that the functions of the commission,
whether judicial, quasi-judicial or not, did not by itself preclude or permit the application of section 34
under the circumstances.824 The court per Makgoka J stated that ‘the fact that the Marikana commission
only investigates and reports, possibly with recommendations, is not in and of itself, the reason for s
34’s non-applicability’.825 This principle was endorsed by the Constitutional Court.826 Jurisprudence
shows that commissions must nevertheless meet the requirement of fairness, both procedural and
substantive.827 Makgoka J further indicated that,
‘[i]n the context of the present application, it is of no consequence that the commission
is not of a judicial or quasi-judicial nature. That does not, in the author’s view, place
the Commission outside the scope of s 34 of the Constitution. At a conceptual level,
the general proposition that the proceedings of commissions of inquiry fall outside the
scope of s 34 at the outset, is to my mind, an over-simplification of a complex situation
involving constitutional rights and a distinct possibility of those rights being adversely
affected by the outcome of the commission.’828
The court thus considered factors such as the complexity of the dispute before the commission, whether
constitutional rights are involved and whether the findings of the commission would prejudice these
constitutional rights of the parties before it.’829
821
See Chapter 7.
822
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2000
(384/2000) ZASCA 44.
823
Mbebe and Others v Chairman, White Commission and Others 2000 (7) BCLR 754 (TK).
824
Magidiwana and Another v President of the Republic of South Africa and Others 2013 (37904/201) ZAGPPHC
292. The dispute involved the right to legal representation before a commission of inquiry.
825
At para 33.
826
Legal Aid South Africa v Magidiwana and Others 2015 (CCT188/14) ZACC 28 (CC).
827
Grundling v Van Rensburg NO 1984 (4) SA 680 (W); Du Preez and Another v Truth and Reconciliation
Commission 1997 (426/96) ZASCA 2 (SCA).
828
At para 37.
829
At para 38.
137
It is clear from the wording of section 34 that where a tribunal or other forum is tasked with the
responsibility of adjudicating a justiciable dispute, that it has to meet the criteria of independence and
impartiality. These are key features of the right of access to the courts and are expressly included in
section 34. Key indicators of the independence of the courts include the process for the appointment of
judicial officers,830 the judicial oath,831 security of tenure,832 financial security833 and the limitation of
civil liability of judges.834
The independence of the courts is also bolstered by section 165 of the Constitution which provides that
‘the courts are independent and subject only to the Constitution and the law, which they must apply
impartially and without fear, favour or prejudice’.835 Section 165 also places a prohibition on any
interference with the functioning of the courts by anyone.836
The lack of impartiality on the part of a presiding officer provides a constitutional basis for his or her
recusal. The Constitutional Court in De Lange made it clear that the
‘… time-honoured principles that no-one shall be a judge in his own cause and that the
other side should be heard aim toward eliminating the proscribed arbitrariness in a way
that gives content to the rule of law’.837
In President of South Africa v South African Rugby Football Union (SARFU II ) 838 the Constitutional
Court emphatically directed that,
‘… it must never be forgotten that an impartial judge is a fundamental pre-requisite for

a fair trial and a judicial officer should not hesitate to recuse herself or himself if there
830
Section 174 of the Constititution of South Africa, 1996.
831
Item 6(1) of Schedule 2 to the Constitution of South Africa, 1996.
832
Section 177 of the Constitution of South Africa, 1996.
833
Section 176(3) of the Constitution of South Africa, 1996.
834
Section 25(1) of the Supreme Court Act 59 of 1959
Penrice v Dickinson 1945 AD 6; May v Udwin 1981 (1) SA 1 (A); Soller v Honourable President of the Republic
of South Africa and Others 2006 JOL 17425 (T).
835
836
837
At para 131.
838
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999
(CCT16/98) ZACC 11.
138
are reasonable grounds on the part of the litigant for apprehending that the judicial
officer, for whatever reasons, was not and will not be impartial.’839
The Constitutional Court in S v Basson840 re-emphasised the importance of the impartiality of the
judicial officers and considered it acutely linked to the independence of the courts and essential to a
constitutional democracy. It reaffirmed the ruling in SARFU II in which the Constitutional Court held
that,
‘(a) judge who sits in a case in which she or he is disqualified from sitting because,
seen objectively, there exists a reasonable apprehension that such Judge might be
biased, acts in a manner that is inconsistent with s 34 of the Constitution, and in breach
of the requirements of s 165(2) and the prescribed oath of office’.841
The Constitutional Court in SARFU II formulated the test for recusal as follows:
‘The question is whether a reasonable, objective and informed person would on the
correct facts reasonably apprehend that the Judge has not and will not bring an impartial
mind to bear on the adjudication of the case, that is a mind open to persuasion by the
evidence and the submissions of counsel’.842
It further defined the test for the reasonableness of the apprehension and held that it must be ‘assessed
in the light of the oath of office taken by Judges to administer justice without fear or favour; and their
ability to carry out that oath by reason of their training and experience.’843
The Court thus preferred the ‘reasonable suspicion or apprehension of bias’ approach to that of the ‘real
likelihood of bias’, substituting the former with the phrase ‘reasonable apprehension of bias’.844 This
approach doesn’t signify that the subjective opinion of the litigant constitutes the measure for
determining the existence of bias on the part of the judicial officer. On the contrary, the Constitutional
Court stated clearly that there exists a presumption in favour of the impartiality of the court with which
839
President of the Republic of South Africa and Others v South African Rugby Football Union and Others (1999),
para 48.(own emphasis added).
840
S v Basson 2005 (CCT20/2003) ZACC 10 (CC).
841
S v Basson (2005), para 30.
842
843
S v Basson S v Basson (2005).
844
139
the court cannot easily dispense without coherent and persuasive evidence.845 The fairness of a hearing
is therefore influenced by the extent to which the tribunal and its presiding officer(s) are free from direct
or indirect influence.
5.5. SECTION 34 AND THE LIMITATION CLAUSE (SECTION 36)
Section 34 is not included in the list of non-derogable rights in the Constitution of South Africa.
However, the State has a fundamental obligation not to restrict access to the courts which is imposed
by international and regional instruments that it has signed, ratified and acceded. This obligation has
further been entrenched in our domestic legal order by our Constitution. As a consequence, the State is
obliged to establish courts and other adjudicating fora, ensure its efficient and effective functioning,
and to protect bona fide litigants.846 Any limitation of unfettered access to the courts and the ousting of
the jurisdiction of the courts in justiciable matters will be invalid unless it withstands the interrogation
of the limitation clause in the Constitution.847 The dictum of the Constitutional Court in Road Accident
Fund v Mdeyide, albeit within the context of ‘time bars’, reflects the balancing act that the courts must
perform.848 Van der Westhuizen J, for the majority, expressed the view that ‘[t]here are … no hard and
fast rules, each case must be judged on its own circumstances and it is a matter of degree’.849 Froneman
J expressed a similar view, stating that,
‘[t]here is no hard and fast rule for determining the degree of limitation that is consistent
with the Constitution. It depends upon whether the limitation affords litigants an
adequate and fair opportunity to exercise the right to judicial redress’.850
845
South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods
Division Fish Processing 2000 (CCT2/00) ZACC 10.
846
Bernstein and Others v Bester NO and Others (1996), para 51.
De Lange v Smuts NO and Others (1998), para 312.
Beinash and Another v Ernst & Young and Others 1998 (CCT12/98) ZACC 19, para 17.
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (2005), paras 41–43.
847
Section 36.
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that
the limitation is reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including—
(a). the nature of the right;
(b). the importance of the purpose of the limitation;
(c). the nature and extent of the limitation;
(d). the relation between the limitation and its purpose; and
(e). less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right
entrenched in the Bill of Rights.
848
Road Accident Fund and Another v Mdeyide 2010 (CCT10/10) ZACC 18 (CC).
849
At para 69.
850
At para 102.
140
An application of the limitation clause triggers a two stage enquiry.851 Stage one involves two enquiries,
namely, determining the boundaries of the right and ascertaining whether the law crosses that
boundary.852 The Constitutional Court has endorsed a broad approach to the first enquiry of stage one,
which entails an analysis of the text within its context, taking into consideration the foundational values
of our constitutional order rather than a literal interpretation of the text.853 The view has been expressed
that the rights analysis under our Constitution ‘should not be a proxy for the limiting of rights’.854 This
would run the risk of a conflation of the two-stage enquiry into the limitation of the right by inserting
the proportionality enquiry into stage one. Stage one of the enquiry entails an analysis of the nature,
content and application of the right to the given circumstances. This is informed by the constitutional
values entrenched in our legal order.
The judgment in the Road Accident Fund v Mdeyide855 is therefore a curious development in our
constitutional jurisprudence and has been labelled ‘an explicit doctrinal shift concerning the two stages
of a rights enquiry’.856 In the majority judgement delivered by Van der Westhuizen J the court
acknowledges the two stages of the rights enquiry,857 recognises the confusion created by Didcott J in
Mohlomi858 but nevertheless proceeded to conflate the two stages. The court stated that,
‘it is clear from the judgements of this court that although a two-step approach is
appropriate, the questions raised and the standards applied may sometimes overlap and
be applicable to both. It is not always practical to rigidly separate the two stages of the
enquiry’.859
The majority court found the infringement by the impugned provision justifiable. 860 However, the
minority judgement delivered by Froneman J, came to a different conclusion, having applied the two-
851
S v Makwanyane and Another 1995 (CCT3/94) ZACC 3, paras 100–102.
852
853
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (1995).
854
855
Road Accident Fund and Another v Mdeyide (2010).
856
Bilchitz, D (2011), para 571.
857
At para 56.
‘Because the Constitution recognises specific rights in Chapter 2 and provides for the limitation of rights by way of a
general limitation clause, a two-stage enquiry is necessary. The process of interpreting the right is different from that
of considering the limitation of the right. Two questions have to be asked. The first is whether the right is limited
and, if it is, the second is whether the limitation is constitutionally permissible.’
858
At para 56.
‘A two-step analysis was undertaken in Mohlomi…However, some of the considerations taken into account during the
first phase of the enquiry, could have been relevant in the second as well. The finding that the claimant was not
afforded an adequate and fair opportunity to seek judicial redress, could have been made at the end of the second stage
of the enquiry, as it was at the end of the first’.
859
Road Accident Fund and Another v Mdeyide (2010), para 59.
860
Section 23(1) of the Road Accident Fund Act, 56 of 1996.
141
stage enquiry instead of a broad overarching analysis.861 It would therefore seem that the two-stage
enquiry ensures that fundamental rights are better protected.
Chaskalson P in S v Makwanyane recognised the importance of the two-stage enquiry for a number of
reasons. First, the court is allowed to accord a broad and generous interpretation of the right during the
first stage of the enquiry. This is particularly important bearing in mind the urgent need for redress in
the country and it is in accordance with an approach to statutory interpretation that is consistent with a
paradigm of transformative constitutionalism. Secondly, the two-stage enquiry might produce a
different outcome. The conflation of the two stages results in the enquiry into the justification for the
infringement being conducted in a manner that encourages a consideration of multiple competing
factors instead of those outlined in the limitation clause.862 This could clearly affect the outcome of a
dispute as Mdeyide demonstrated.
A finding of an infringement of a constitutional right triggers stage two of the enquiry, which involves
the justification for the infringement.863 This is followed by an exercise in proportionality during which
the limitation clause is applied to the infringing law. Proportionality involves an enquiry into the
manner in which a right is limited and not whether it should be limited at all.864 The Constitutional
Court has cautioned against a technicist approach during this exercise, stating that ‘(i)n essence, the
court must engage in a balancing exercise and arrive at a global judgment in proportionality and not
adhere mechanically to a sequential check-list’.865
Any infringing law has to meet the criteria of reasonableness and justifiability. The enquiry into
whether these criteria have been met must be conducted within the context of an open and democratic
society based on human dignity, equality and freedom, considering all relevant factors, including those
listed.866 These Constitutional values, which are super-entrenched by the preamble and founding
provisions, are explicitly invoked in this section. This implies that any limitation of the right of access
to the courts will have to be measured against these values.
861
At para 141.
‘The difficulty with the provision is the absence of a knowledge requirement, combined with the absence of a
condonation provision. It is this that renders the provision too inflexible to be justified.’
862
Bilchitz, D (2011).
863
Section 36 (1).
864
865
S v Manamela and Another (Director-General of Justice Intervening) 2000 (CCT25/99) ZACC 5 (CC), para 32.
866
Section 36(1).
142
Section 34 enables individuals to challenge legislation that prevents or limits the judicial resolution of
a dispute and, as such, impede their constitutional right to have disputes resolved. 867 A number of
statutes have been challenged using section 34 and its predecessor, section 22 of the Interim
Constitution.868 These include statutory provisions imposing ‘time bars’ for the commencement of civil
actions,869 provisions that limit the access to the courts of persons regarded as vexatious litigants in
terms of the Vexations Proceedings Act 3 of 1956,870 rules of court requiring applicants to furnish
security for costs as a pre-requisite for making an application,871 provisions requiring a dispute to be
referred to an administrative tribunal,872 provision precluding appeals against the outcome of an
arbitration tribunal unless otherwise agreed by the parties,873 ouster provisions aiming to place issues
beyond judicial scrutiny,874 prescription periods875 and civil immunity in terms of amnesty.876 A range
of statutes that contained provisions that permitted legal disputes to be resolved without recourse to the
courts, were also challenged.877 These ‘implied ouster clauses’ had in common the limitation of the
right of the aggrieved party to approach the courts for relief. Although these provisions did not
expressly oust the jurisdiction of the courts, it nevertheless had the same effect. Jurisprudence shows
that the greater the potential for social conflict, the greater the likelihood that a particular measure
infringes the right of access to the courts. Ngcobo J expressed the view of the Constitutional Court as
follows:
867
Loots, C (1999).
868
Interim Constitution 1993.
869
Baldeo v Minister of Safety and Security 1997 (12) BCLR 1728 (D).
Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another 2008 (CCT19/07)
ZACC 8.
Barkhuizen v Napier (2007).
Engelbrecht v Road Accident Fund and Another (2007).
870
Beinash and Another v Ernst & Young and Others (1998).
871
Mthethwa (Khoza) and Others v Diedericks & Others 1996 (4) SA 381 (N).
872
Carephone (Pty) Ltd v Marcus NO & Others 1999 (3) SA 304 (LAC).
Baramoto and Others v Minister of Home Affairs and Others 1998 (5) BCLR 562 (W).
873
Patcor Quarries CC v Issroff & Others 1998 (4) SA 1069 (SE).
874
De Lille & Another v Speaker of the National Assembly 1998 (3) SA 430 (C).
875
876
Azanian Peoples Organisation (AZAPO) AND Others v The President of the Republic of South Africa 1996 (4) SA
671 (CC).
877
Zondi v MEC for Traditional and Local Government Affairs (2004).
Armbruster and Another v Minister of Finance and Others 2007 (CCT59/06) ZACC 17 (CC).(KwaZulu-Natal Pound
ordinance that allowed a landowner the seizure of livestock that trespassed onto his land)
Metcash Trading Limited v Commissioner for the South African Revenue Service and Another 2000 (CCT3/00) ZACC
21 (CC).(Value Added Tax Act that had a ‘pay now, argue later’ approach, having the effect of a civil judgment,
ruled permissible limitation)
Senwes Ltd v Muller 2002 (4) SA 134 (T). (perfection clause creating a notarial bond, entitling the creditor to
unilaterally to determine if default has occurred)
Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd 2001 (1) SA 251 (E).(perfection clause creating a notarial bond).
143
‘…The sharper the potential for social conflict, the more important it is, if our
constitutional order is to flourish [or survive], that disputes are resolved by courts [and
other independent tribunals and fora]’878
Furthermore, the more drastic the impact on the interests of the applicant, the more likely the court
would be to find a limitation of section 34.
Case law reflects a broad spectrum of positions insofar as the limitation of the right of access to the
courts is concerned. On the one end, there is a complete annihilation of the right which undermines its
very purpose.879 These include limitations that allow self-help which militates against the right of access
to the courts. Such limitations would require exceptional motivation.880 Mokgoro J articulated the view
of the Constitutional Court as follows:
‘The right of the access to the court is indeed foundational to the stability of an orderly
society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve
disputes…As a result, very powerful considerations would be required for its limitation
to be reasonable and justifiable.’881
The courts have therefore not hesitated to strike down prescription periods and statutory time bars that
limited the right of access to the courts. 882 The Constitutional Court, in examining the justification for
time bars that imposed a limitation on this right, introduced an ‘adequate and fair opportunity’ test. It
is clear from the dicta of the Court that an applicant must be given a ‘real and fair’ opportunity to
enforce his or her rights. In Mohlomi the Court reiterated that,
878
Zondi v MEC for Traditional and Local Government Affairs (2004), para 61.
879
Azanian Peoples Organisation (AZAPO) AND Others v The President of the Republic of South Africa (1996).the
court ruled that extraordinary circumstances justifies the limitation of the right of access.
Lesapo v North West Agricultural Bank and Another (1999).
Zondi v MEC for Traditional and Local Government Affairs (2004).
In both instances the court found the seizure of property without the court’s intervention an unjustifiable limitation of
the right of access to the courts.
880
881
Lesapo v North West Agricultural Bank and Another (1999), paras 1644–1645.
882
Potgieter v Lid van Die Uitvoerende Raad: Gesondheid Provinsiale Regering Gauteng En Andere 2001 (CCT26/01)
ZACC 4.
Moise v Greater Germiston Transitional Local Council 2001 (CCT54/00) ZACC 21 (CC).
Zantsi v Council of State, Ciskei and Others 1995 (CCT24/94) ZACC 9 (CC).
Luitingh v Minister of Defence 1996 (CCT29/95) ZACC 5.
Mthethwa (Khoza) and others v Diedericks & others (1996).
Bellocchio Trust Trustees v Engelbrecht NO 2002 (3) SA 519 (C).; Brümmer v Minister for Social Development and
144
‘the consistency of the limitation with the right depends upon the availability of an
initial opportunity to exercise the right that amounts, in all the circumstances
characterising the class of the case in question, to a real and fair one.’883
Likewise, when the Court had the opportunity subsequently to consider this key feature of procedural
justice,884 it relied on the above dictum of Mohlomi and stated the following: ‘However, in enacting a
statutory limitation, the legislature must allow a real and fair opportunity to a party aggrieved by actions
of the state or those of its employees to enforce his or her rights.’885
The Constitutional Court considered this feature more recently and consistently held that an applicant
must be afforded a ‘real and fair’ opportunity to access the court.886 This test allows the court to consider
the circumstances of each case in order to arrive at a just and equitable decision.
The Constitutional Court further reinforced the right to a public trial,887 struck down a provision that
ousted the discretionary power of the court,888 refused to condone an unreasonable delay with an
application for leave to appeal, 889 and did not tolerate the failure on the part of the State to enforce a
remedy.890
On the other hand, where limitations themselves facilitate greater access, the courts have displayed a
891
greater tolerance for the infringement, although the minority judgement in two of such cases
expressed views to the contrary.892 It therefore ruled a limitation justifiable where it involved a vexatious
litigant,893 screening process for leave to appeal,894 and mandatory warrant of arrest. 895
883
At para 12 (own emphasis added).
884
Potgieter v Lid van die Uitvoerende Raad: Gesondheid Provinsiale Regering Gauteng en andere (2001).
885
Potgieter v Lid van die Uitvoerende Raad: Gesondheid Provinsiale Regering Gauteng en andere (2001), para 6.
(footnotes omitted).
886
Engelbrecht v Road Accident Fund and Another (2007), para 31.
Brümmer v Minister for Social Development and Others (2009).
887
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus
Curiae) In re: Masetlha v President of the Republic of South Africa and Another (2008).
888
Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa T/a The
Land Bank and Another 2011 (CCT68/10) ZACC 2 (CC).
889
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2005 (CCT59/2004) ZACC 14
(CC).
890
891
893
894
Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice intervening) (1996).
895
Omar v Government of the Republic of South Africa and Others 2005 (CCT47/04) ZACC 17 (CC).
145
Jurisprudence thus reflects that the Constitutional Court, in accordance with its constitutional mandate
as the custodian of the transformation agenda in the country, has been instrumental in dismantling the
remnants of a statutory framework designed to disempower and impoverish.
5.6. CONCLUSION
The substantive legal framework of the right to procedural justice is designed to ensure access to
substantive justice. However, ‘[s]ubstantive justice is an ever-elusive goal for constitution-makers’.896
It is therefore bound to fall short of aspirations and the goals will almost always be met imperfectly.
Access to the courts and other dispute resolution fora is an important element of a well-functioning
justice system. The substantive human rights framework of access to procedural justice in civil matters
in South Africa spans an impressive network of constitutional provisions and related legislation. The
right to access to the courts and other dispute resolution fora is contained in section 34 of the
Constitution. It constitutes the fulcrum for the protections and guarantees in the Bill of Rights and is
regarded as the ‘bulwark against vigilantism’ and the ‘guarantee against partiality’. In its absence, the
constitutional protections and guarantees are worthless. Read with this network of constitutional
provisions, this section is designed to ensure meaningful access to procedural as well as substantive
justice.
Section 34 first, confers upon everyone the right to have disputes settled before a court. Secondly, it
expressly guarantees the right to a fair and public hearing. Thirdly, it provides for the option to have
the right to a fair and public hearing exercised in an independent and impartial tribunal and, finally,
confers the right of appropriate relief.
The first key feature, the right of access to the court, is unfettered but for the limitations permitted by
section 36. Therefore, if the State does not fulfil the right of access to the courts, it would constitute a
prima facie breach of its constitutional obligation which it will have to justify.
The second feature, the right to a fair hearing, requires an adequate and fair opportunity to seek relief.
The right to equality is at the heart of this feature and it entrenches the principles of non-discrimination
and natural justice, in particular, the audi alteram partem principle. The equality clause in the
Constitution expressly guarantees, among others, the right to equality before the law, the right to be
896
Christiansen, EC, 'Transformative constitutionalism in South Africa: Creative uses of Constitutional Court
authority to advance substantive justice', (2010), 13, Journal of Gender, Race & Justice, pp. 575–614. p. 575.
146
equally protected by law, the right to equally enjoy the benefits of the law, and the right not to be
unfairly discriminated against on grounds including those listed.
Fairness also gives rise to other key features of the right to procedural justice, namely publicity of the
hearing and its outcome, as well as independence and impartiality of the dispute resolution mechanism.
The right to a public hearing resulted in the development of the doctrine of ‘open justice’ which enjoys
Constitutional Court endorsement. The other key features, those of independence and impartiality,
require all dispute resolution fora to meet the minimum standards of justice and entrenches the second
principle of natural justice, namely nemo iudex in sua causa.
The right of access to procedural justice, like any other right in the Bill of Rights, may be limited by
section 36 of the Constitution, known as the limitation clause. Although recent Constitutional Court
decisions have conflated the two-stage enquiry into the limitation, there is consensus that a limitation
of the right to procedural justice would require exceptional motivation. Jurisprudence shows that the
greater the potential for social conflict, the greater the likelihood that a particular measure infringes the
right of access to the courts. Moreover, the more drastic the impact on the interests of the applicant,
the more likely the court would be to find a limitation of section 34.
Case law reflects a broad spectrum of positions insofar as the limitation of the right of access to the
courts is concerned. On the one end, there is a complete annihilation of the right which undermines its
very purpose, which will hardly be tolerated by the courts. On the other end, where limitations
themselves facilitate greater access, the courts have displayed a greater tolerance for the infringement.
The courts have applied an ‘adequate and fair opportunity test’ to examine the justification for the
infringement. However, no principles have emerged from these decisions as there seems to be
consensus that no hard and fast rules exist for determining whether the infringement is consistent with
the Constitution. The Constitutional Court, nevertheless, in accordance with its constitutional mandate
as the custodian of the transformation agenda in the country, has been instrumental in dismantling the
remnants of a statutory framework designed to disempower and impoverish.
South Africa is not immune to the malaise of many other countries, where the legal reforms fall short
of expectations, either due to shortcomings in their design and/or problems in its implementation. The
substantive legal framework of access to procedural justice falls short of the transformative
constitutional agenda in a number of ways. Section 34, unlike its counterpart in criminal law, section
35, fails to codify the right to a fair civil hearing in sufficient detail. This leaves it up to the courts to
formulate the key features of the right, drawing upon related constitutional provisions and international
precedent.
147
This framework does not preclude alternative paradigms for the delivery of access to procedural justice,
such as customary practices and paralegal assistance. However, efforts have fallen short of
implementation. These shortcomings result in a disconnect between the law and its intended
beneficiaries. As a result, disadvantaged communities are not empowered to take advantage of the legal
reforms that are intended to ensure greater access to justice for everyone but especially the marginalised
and the poor. This requires a paradigm shift in the delivery of access to justice and the multipronged,
multilevel approach of legal empowerment presents an alternative in which the paralegal has a key role
to play. This will be addressed when the right to legal assistance, including the right to legal
representation, is discussed in Chapter 6.
148
CHAPTER 6
SECTION 34 AND THE RIGHT TO LEGAL ASSISTANCE IN CIVIL MATTERS
6.1. INTRODUCTION
The previous chapter examined the content, nature and application of the right of access to procedural
justice. The conclusion was reached that this right imposes an obligation on the State to provide the
necessary adjudicating mechanisms to resolve civil disputes amongst and between citizens and the
State. Making these adjudicating mechanisms available without the means to access them and/or
enable meaningful participation in their proceedings undermines the legitimacy of these mechanisms
and calls the outcomes of its proceedings into question. The right to legal assistance,897 including legal
representation in an adjudicating forum,898 is therefore pivotal to enable this access, while all service
providers, particularly the narrow legal profession and the paralegal profession, have an essential role
to play. As a consequence, the right to legal assistance at the expense of the State (legal aid), where the
interest of justice so require, becomes a key contributor to making access to justice a reality for poor
and marginalised communities.
Given the fact that the South African Constitution is informed by an international and regional human
rights framework, this chapter examined the right to legal assistance in civil matters under this
international and regional human rights framework. The focus was on the Universal Declaration of
Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the
African Charter on Human and Peoples’ Rights (ACHPR). This chapter also examines the right to legal
assistance under section 34 of the Constitution of South Africa.
In addition, legal assistance, in this thesis, is expressed as a continuum of services that are not only
confined to legal representation in a judicial or quasi-judicial forum. The focus of this enquiry is
therefore not only on the right to legal representation, but what this study considers to be a human right
to legal assistance, including legal representation, which under certain circumstances, may include
legal aid. The author, therefore, advocates for the recognition of a human right to legal assistance and
not only legal representation.
Most of the academic literature and the few available court decisions on the right to legal assistance in
civil matters in South Africa are centred on access to legal representation during complex judicial,
897
Legal assistance as defined in Chapter 2.
898
Legal representation as defined in Chapter 2.
149
quasi-judicial proceedings or non-judicial proceedings.899 This right to legal representation at the
expense of the requestor in a court of law has always been recognised under common law in South
Africa,900 albeit indirectly in civil matters.901 The rules of the various courts make express provision
for it.902 Disputes that involve the right to legal assistance in civil matters mainly concerned itself with
legal representation in fora other than courts of law.903 In these disputes, an expectation of legal
representation in quasi-judicial fora was almost always contrasted with an entitlement to legal
representation in a conventional court of law. However, there is no judicial precedent in South Africa
for the right to comprehensive legal assistance, whether at the expense of the requestor or the State.
The right to legal assistance has also barely been considered in academic literature. The court decisions
would thus aid the discussion on the right to legal assistance and the role of the paralegal in providing
that assistance to a limited extent.
Section 34 of the Constitution, unlike sections 28 and 35, does not expressly confer the right to legal
assistance, whether at the expense of the State or not. The Constitution provides expressly for the right
to legal representation at the expense of the State in criminal matters for persons of all ages, and civil
matters, which involve persons younger than 18.904 In both instances this right has an inherent
limitation, embodied in the phrase ‘if substantial injustice would otherwise result’, which is given effect
through a means and/or merit test.905
899
See the ensuing discussions.
900
S v Mabaso and Another 1990 (60/89) ZASCA 24 (AD); S v Seheri 1964 (1) SA 29 (A); S v Baloyi 1978 (3) SA
290 (T).
901
Goldberger v Union and South West Africa Insurance Co Ltd 1980 (1) SA 160 (E); Hamata and Another v
Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others (2000); MEC: Department of
Finance, Economic Affairs & Tourism, Northern Province v Mahumani 2005 (2) SA 479 (SCA); Commission for
Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces 2013 (005/13) ZASCA
118 (SCA).
902
See Chapter 7.
903
Goldberger v Union and South West Africa Insurance Co Ltd (1980); Hamata and Another v Chairperson,
Peninsula Technikon Internal Disciplinary Committee and Others (2000); MEC: Department of Finance, Economic
Affairs & Tourism, Northern Province v Mahumani (2005); Commission for Conciliation, Mediation and Arbitration
and Others v Law Society of the Northern Provinces (2013); Legal Aid South Africa v Magidiwana and Others (2015).
904
Section 28(1)(h) reads:
‘Every child has the right: …
To have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the
child, if substantial injustice would otherwise result.’
The relevant parts of section 35 read:
(2)(c) ‘Everyone who is detained, including every sentenced prisoner has the right –
…to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice
would otherwise result, and to be informed of this right promptly.’ and
(3)(g) ‘Every accused person has a right to a fair trial, which includes the right –
to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice
would otherwise result, and to be informed of this right promptly’.
905
Section 28(h) and 35(2)(c) and 35(3)(g).
150
This study argues that the right to legal assistance in civil matters is derived from the express right906
to a fair hearing, which is a fundamental component of the right of access to the courts and other dispute
resolution fora contained in section 34 of the Constitution. For the criteria of fairness to be met, one
party to the proceedings may require legal assistance in the form of legal information,907 the other may
require legal advice;908 while another may require legal support;909 and another legal representation.
The right to legal representation, as a type of legal assistance, is thus derived from the right to a fair
hearing, which is expressly provided for in section 34.910 It is this distinction between an express and
derivative right911 to legal representation that has fuelled the debate on whether the right to legal aid in
civil matters for indigent persons, 18 years and older, is envisaged by the Constitution.
Academic writers express conflicting views on whether the Constitution provides for the right to legal
representation in civil matters at the expense of the State.912 Where the courts have had the opportunity
to rule definitively that such a right indeed exists beyond the express constitutional imperatives,913 it
was confined to a particular category of persons914 or limited to the unique circumstances of the matter
at hand.915
Denialists advance two arguments against an interpretation of section 34 in a manner that includes the
right to legal representation at the expense of the State in civil matters. The first is that section 34
confers no express right to legal representation and the second argument is based on the fact that the
limited resources of the State will discourage such an interpretation. Their arguments are either
characterised by a positivist approach to the interpretation of section 34,916 or a conflation of the two
stage enquiry into the limitation of the right.917 Neither approach assists in protecting the primary non-
derivative right of access to procedural justice in section 34.
906
An express right is one that is explicitly outlined in the text.
907
As defined in Chapter 2.
908
909
910
See Chapter 5.
911
A deferred right is one that is inferred from the text.
912
Brickhill, A & Friedman, J (2006); De Waal, J, Currie, I & Erasmus, G (2013).
913
S 28(h) and 35(2)(c) and (3)(g).
914
Nkuzi Development Association v Government of the Republic of South Africa and Another 2001 (LCC10/01)
ZALCC 31 (LCC).
915
Magidiwana and Others v President of the Republic of South Africa and Others 2013 (CCT 100/13) ZACC 27
(CC).
916
Nkabinde J in Legal Aid South Africa v Magidiwana and Others (2015).
Mcquoid-Mason, D, 'Access to Justice in South Africa: Are there Enough Lawyers?', (2013), 3(3), Oñati Socio-Legal
Series, pp. 561–579.
917
151
Legal assistance in criminal matters is required from the moment of arrest and this action puts into
motion a process which, in the majority of cases, requires adjudication by a court of law. It is, therefore,
not surprising that the right to legal assistance in criminal matters mostly require legal representation
by the narrow legal profession. The focus of legal assistance in criminal matters is thus mainly on the
courts and the narrow legal profession.
However, for civil matters, ‘justice is served in many rooms, not just in the court room’.918 The phrase,
‘tribunal or other dispute resolution forum’ reflects this feature. Moreover, there is an overwhelming
need for legal assistance (information, advice, support) and not only legal representation in civil matters.
Legal assistance in civil matters thus stretches beyond litigation in a conventional court of law or other
dispute resolution forum. It is axiomatic that legal representation cannot be the focal point of a strategy
to alleviate poverty. The nature of legal services is determined by the types of legal problems that
services intended to help resolve. These matters vary in nature and complexity; hence the ‘one size fits
all’ solution, which applies to criminal proceedings, is not suitable. This is where the problem with
provision of legal assistance in civil matters, particularly legal aid, arises and where the solutions rest.
Figure 1919 illustrates that the exclusive focus on legal representation in a court of law and the narrow
legal profession for the purpose of providing access to civil justice is wholly inappropriate.
Paradoxically, by focusing on providing access to justice at one narrow end, justice is denied at the
other much broader end, where the needs are concentrated.
Examination of the right to legal assistance, not only legal representation in a judicial or quasi-judicial
forum, is thus justified. This chapter first examines the international and regional human rights
framework of the right to legal aid in civil proceedings. Secondly, it presents a challenge to a possible
positivist interpretation of the derivative right to legal representation, as implied by section 34. Thirdly,
this chapter examines the right to legal representation in civil proceedings before the courts and other
dispute resolution fora and the State’s obligation to fund that representation. Finally, the argument is
advanced for a human right to legal assistance beyond the courts and other dispute resolution fora.
918
Galanter, M, 'Justice in many Rooms: Courts, Private Ordering, and Indigenous Law', (1981), 13(19), The Journal
of Legal Pluralism and Unofficial Law, pp. 1–47. p. 1.
919
See page 42.
152
6.2. THE RIGHT TO LEGAL ASSISTANCE UNDER THE UNITED NATIONS HUMAN
RIGHTS FRAMEWORK
A number of international and regional human rights instruments recognise the right to free legal
assistance (legal aid) as an essential component of the right to a fair trial, which was discussed in the
preceding chapters.920 The right to free legal assistance is also entrenched in a range of other United
Nations legal instruments.921
However, this right is mainly confined to criminal matters. The conventional model to resolve disputes
in criminal matters reflects a predictable path. Those who stand accused may be arrested, detained,
brought before a court of law, incarcerated or fined if found guilty, or released, if not. Legal assistance
is very often guaranteed throughout this linear process and requires the assistance of a practitioner of
the law, particularly a lawyer. However, the immense power of the State is not only confined to criminal
law. Yet, in spite of the prevalence of civil legal needs, many citizens do not have equal access to the
civil justice system.922
Neither the UDHR nor the ICCPR expressly addresses the right to legal aid in civil matters. The United
Nations Human Rights Committee nevertheless encourages it.923 The Committee acknowledged that
‘the availability or absence of legal assistance often determines whether or not a person can access the
relevant proceedings or participate in them in a meaningful way’.924
920
Article 14(3)(d) of the ICCPR
A person charged with a criminal offence has the right ‘to defend himself in person or through legal
assistance, of this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he doesn’t have sufficient means to
pay for it.’
Article 18(3)(d) of the UN General Assembly, International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families, A/RES/45/158, 2220 U.N.T.S. 39481 (2003). contains an almost
identical formulation to the above.
Articles 37(d) and 40(2)(b)(ii) and (iii) of the GA Res. 44/25 (1990) makes reference to ‘legal and other appropriate
assistance’ and the Committee on the Rights of the Child has ruled that this assistance should be provided free of
charge.
Article 6(3)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14 (1950). (includes the right of the accused to free legal assistance as one of the
‘minimum rights’ of the accused, subject to a merit and means test.
921
United Nations, Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc. A/CONF/611, annex I, E.S.C.
res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11 (1977), para 93; UN General Assembly, Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR
Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), s 17 para 2.
UN General Assembly, Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”),
G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985), s 6.
Principle 18(a) of the Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, (2013)
922
Kaman, C Radday, A & Stanzler, C (2012).
923
924
153
The Special Rapporteur, therefore, advises:
‘In accordance with jurisprudence of existing human rights treaty bodies…the notion
of beneficiaries of legal aid should be extended to any person who comes in contact
with the law and does not have the means to pay for counsel.’925
The Report of the Special Rapporteur states that the beneficiaries specifically include: ‘[a]ny person
whose rights have been violated by an omission or commission by a State actor’ and ‘[a]ny person
whose rights and obligations are determined through a judicial or extrajudicial process in a civil
matter’.926 The Report therefore does not make a distinction between criminal and civil matters insofar
as it relates to the provision of legal aid and advises that this aid is extended beyond the conventional
courts.
Although there is no explicit international statutory right to legal assistance at the expense of the State
in civil matters, equal access to legal aid is fundamental to the promise of protection under the rule of
law, and is essential for the enforcement of a number of substantive human rights. While it is true that
the poor cannot ‘eat due process’,927 fair adjudicating mechanisms are critical for the enforcement and
protection of substantive human rights, while the right to legal assistance helps to protect fundamental
rights against standard threats.928 Individuals do not only require knowledge of the law but also
effective access to it. This requires governments to provide the necessary resources for their citizens to
be informed of and gain access to the law.
Moreover, authority for the extension of legal aid to civil matters is drawn from jurisprudence, which
emanates from various jurisdictions, including two court decisions predating article 14 of the ICCPR. 929
In Arey v Ireland, the European Court of Human Rights interpreted the right to a fair hearing in civil
matters as having effective access to the courts.930 It thus held that legal assistance at the expense of
the State should be provided to indigent civil litigants where the interest of justice requires it. This
decision stands as the authority for approximately forty-five nations across Europe. Prior to the decision
in Arey v Ireland the German Constitutional Court ruled that the State’s constitutional guarantee of a
fair hearing in civil cases may require free legal representation for the poor, where the laws of the
925
Report of the Special Rapporteur on the independence of judges and lawyers (2013) p. 7.(own emphasis added)
926
927
Haney, C, 'The Fourteenth Amendment and symbolic legality', (1991), 15(2), Law and Human Behavior, pp. 183–
204.
928
Luban, D, 'Is There a Human Right to a Lawyer?', (2014), 17(3), Legal Ethics, pp. 371–381.
929
Decision of June 17, 1953
Judgment of October 8, 1937
930
Airey v. Ireland 1979 (A/32) ECHR 3 (6289/73).
154
country do not.931 Sixteen years earlier, the Swiss Supreme Court also stated emphatically that the poor
could not be equal before conventional courts unless they had legal representation, like the rest of the
citizenry.932
The right to equality before the law and by the law, including the prohibition of discrimination, is
considered in international legal circles as being essential to international peace and security and a pre-
condition for the enjoyment of all human rights, whether civil, political, economic, social or cultural. 933
The ICCPR expressly provides for equality before the law; equality under the law; equal protection of
the law; and equal benefit of the law. 934 This denotes both formal935 as well as substantive equality.936
There is thus the international realisation that institutional structures impact differently on various
communities and that the systemic abuse and disempowerment that vulnerable communities experience
cannot only be met by ensuring formal equality.
The Report of the Special Rapporteur notes that a failure to provide legal assistance where a person’s
financial position is such that he/she cannot meet the cost of litigation is considered to be a form of
discrimination.937 It violates that person’s right to equality before the law and equal protection of the
law. Mere formal equality renders the right of access to the courts illusory, while substantive equality,
in most cases, would require legal assistance to facilitate access to the legal process.938
In many of the cases, which involve the right to legal representation in criminal matters, the HRC has
applied the general principle of ‘equality of arms’, emphasising its importance as an essential
component of a fair trial.939 The principle of ‘equality of arms’ is violated when disparity in the power
relationship between the parties to the legal proceedings is so great that it compromises the fairness of
the proceedings.
931
Decision of June 17, 1953.
932
Judgment of October 8, 1937.
933
Office of the High Commissioner, Human Rights in the Administration of Justice: A Facilitator’s Guide on Human
Rights for Judges, Prosecutors and Lawyers, (2011) Geneva, Switzerland: United Nations, ch 13.
934
Articles 14 and 26
935
Formal equality refers to the application of the law
936
Substantive equality refers to the result and benefits of applying the law
937
938
Leslie, L, The Right to Legal Aid: A Guide to International Law Rights to Legal Aid, (2014), Davidson G & Morris
C (eds.) Vancouver: Lawyers Rights Watch Canada.
939
Nowak, M, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (2005) Kehl am Rhein, Germany:
N.P. Engel Publishers. Found in Danielsen, D, Davis, M, Anders, P, et al, In The Interest of Justice: Human Rights
and the Right to Counsel in Civil Cases, (2006) Northeastern University School of Law.
155
The ICCPR, which binds South Africa as a matter of treaty law at an international level, places an
obligation on the State to take positive steps to ensure the enjoyment of all rights that are contained in
the Covenant.940 These steps include modifying the domestic laws in compliance with the State’s
international legal obligations and ensuring the effective implementation thereof by all the relevant
institutions.941 The Guiding Principles on Extreme Poverty and Human Rights require states to:
‘… establish effective, affordable and accessible procedures, including non-formal

dispute resolution mechanisms, in accordance with human rights standards, to support
persons living in poverty seeking justice, taking into account the specific barriers that
they face accessing justice’.942
These Guiding Principles further require the State to provide ‘high-quality legal aid systems’ and
‘expanded legal services’ for those who are without the means to pay for it in both criminal and civil
matters.943 The Report of the Special Rapporteur specifically advises that the benefits of a legal system
based on support for paralegals should not be underestimated.944 Paralegals are therefore pivotal in
ensuring fair, accessible and affordable civil justice systems, especially in states where the
overwhelming majority of the population suffers various degrees of poverty and its capacity to deliver
access to justice is hampered by limited resources.
The HRC reminded State Parties that Article 14 applies to criminal as well as civil proceedings.
It noted that,
‘[i]n general, the reports of States parties fail to recognize that article 14 applies not
only to procedures for the determination of criminal charges against individuals but
also to procedures to determine their rights and obligations in a suit at law.’945
The United Nations Human rights framework prioritises legal aid for women and children. The
Committee on the Elimination of Discrimination against Women (CEDAW) determined that states
must ‘ensure that women have recourse to affordable, accessible and timely remedies, with legal aid
940
Article 2.
941
Office of the High Commissioner (2011).
942
At para 68.
943
Office of the High Commissioner, Guiding Principles on Extreme Poverty and Human Rights, (2012).
944
945
HRC General Comment no. 13 (1984), para 8. (own emphasis added).
156
and assistance as necessary’946 and that ‘a crucial element in guaranteeing that justice systems are
economically accessible to women is the provision of free or low-cost legal aid, advice and
representation in judicial and quasi-judicial processes in all fields of law’.947
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules, 1985) call on states to ensure that ‘throughout the proceedings the juvenile shall have the right
to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid
in the country.’948 The Committee on the Rights of the Child subsequently addressed children’s rights
in juvenile justice proceedings and held that a child in conflict with the law ‘must be guaranteed legal
or other appropriate assistance in the preparation and presentation of his/her defence,’ and indicated
that such assistance must be free.949
In its Initial Report to the United Nations Secretary-General under article 40 of the ICCPR, the State
highlighted the statutory measures taken by South Africa to comply with the right to legal aid.950 The
Report nevertheless acknowledged the resource constraints of the State, the fact that legal aid in civil
matters lags behind, and the reality that the Legal Aid Board is unable to meet all the legal representation
needs of the South African society.951 It further acknowledged the ‘middle gap’, whose members are
unable to afford legal representation but fail the means test for legal aid.952 The HRC did not pass
concluding remarks on this aspect of South Africa’s Report as it would not be appropriate for
international monitoring bodies to meddle in the resource allocation of a sovereign state.
It is clear that although the international statutory framework on human rights stops short of providing
for an express right to legal aid in civil matters, there is little doubt that, in terms of international
standards, the State has a fundamental obligation to ensure legal aid in some form or another, where the
interests of justice so require. The right to legal aid in civil matters, therefore, according to these
standards, is materialising as a fundamental human right953 and, where the resources of the state limit
this right, the paralegal is emerging as a central role player, especially on the African continent.954
946
UN Committee General Comment no. 13e on the Elimination of Discrimination against Women, General
recommendation no. 28 on the core obligations of States parties under article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28 (2010), para 34.
947
UN Committee on the Elimination of Discrimination against Women, General recommendation on women’s
access to justice, (2015) CEDAW/C/GC/33, para 1.
948
Rule 15.1.
949
UN Committee on the Rights of the Child, General Comment No. 10: Children’s rights in juvenile justice,
(2007) CRC/C/GC/10, para 49.
950
951
At para 161.
952
At para .160.
953
Danielsen, D Davis, M Anders, P et al (2006).
954
See Chapter 9.
157
6.3. THE RIGHT TO LEGAL ASSISTANCE UNDER THE REGIONAL HUMAN RIGHTS
FRAMEWORK
The ACHPR has been even less forthcoming with the entrenchment of the right to legal aid than its
regional counterparts and the ICCPR. Article 7(1)(c) states that, ‘[e]very individual shall have the right
to have his cause heard. This comprises: … (c) the right to defense, including the right to be defended
by counsel of his choice…’.
The ACHPR does not recognise the right to legal aid, whether in criminal or civil matters, and confines
the right to legal representation to criminal matters only. It nevertheless entrenches the principles of
equality before the law and equal protection of the law, albeit in the absence of the phrase ‘without
discrimination’, which accompanies this principle in international and many other human rights
instruments.955 The obligation of the State in respect of these rights is absolute, immediate and non-
derogable. Moreover, under Article 1, member states are obliged to ‘… recognize the rights, duties
and freedoms enshrined in [the Charter]’ and ‘undertake to adopt legislative or other measures to give
effect to them’.
The African Commission on Human and Peoples Rights has initially filled this vacuum in the regional
statutory human rights framework by relying on HRC Comment 13. The conduct of the State Parties
was therefore measured against norms and standards as they emerged from the international community.
The African Committee advised that:
‘… the right to fair trial involves fulfilment of certain objective criteria, including the
right to equal treatment, the right to defence by a lawyer, especially where this is called
for by the interests of justice, as well as the obligation on the part of courts and
tribunals to conform to international standards in order to guarantee a fair trial to
all’.956
Domestic legal systems and adjudicating mechanisms are thus expected to adhere to international
standards of a fair hearing. These international standards include the right to legal aid, regardless of the
nature of the proceedings, where the interest of justice so require.
955
Article 3.
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
956
Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi (2000). (own emphasis added).
158
The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa is the most
significant regulatory development for legal assistance (including legal aid) and the paralegal on the
African continent.957 These Principles codify the principle of ‘equality of arms’ regardless of the nature
of the proceedings958 and the right to legal representation in judicial proceedings.959 It gives express
recognition to the right to an effective remedy,960 equal access to lawyers of the accused’s choice and
parties to the proceedings,961 access to legal services without discrimination, regardless of the nature of
the proceedings,962 and the right to legal aid and assistance in both criminal and civil matters, which
are assigned by the State subject to a means and a merit test.963 It provides guidelines to the legal
profession on the rendering of legal services under a legal aid scheme. The most significant
development for the purpose of this study is the codification of the role of paralegals.964
Although the Principles does not offer a definition of legal services or legal aid, it qualifies the right to
legal aid and assistance, which is assigned by the State by subjecting it to a means and merit test. The
African Commission on Human People’s Rights have not had the opportunity to consider what the
means test implies in practice, while the Principles merely states that a person would qualify if ‘he or
she doesn’t have sufficient means to pay for it’.965 However, this would clearly be up to the individual
states to determine. The Principles does, however, provide some guidelines in respect of the merit test.
It provides for the right of access to legal aid in a criminal and civil matter, ‘where the interest of justice
so require’.966 In the case of civil matters, the following factors should considered:
- the complexity of the case and the ability of the party to adequately present himself or herself;
- the rights that are affected and
- the likely impact of the outcome of the case on the wider community.967
Most importantly, the Principles requires that states should acknowledge the role that paralegals could
play in the provision of legal assistance, whilst providing an enabling legal framework for this service,
957
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa, ACHPR 33, DOC/OS(XXX)247, Int’l Hum. Rts. Rep. 1180 (2005) (2003).
958
Principle A.2(a) and 6(a).
959
Principle A.2(b) and G(a) – (c).
960
Principle C (a) – (d).
961
Principle G (b).
962
Principle G (a) – (c).
963
Principle H (a) – (k).
964
Principle H (g) – (k).
965
Principle H (a).
966
Principle H (a).
967
Principle H.(b)
159
and its recognition in their domestic legal order. 968 It further places an obligation on the participating
governments to professionalise this paralegal service by establishing ‘training, the qualification
procedures and rules governing the activities and conduct of para-legals’.969 This should be done in
collaboration with the legal profession and non-governmental organisations. Once recognition is given
to paralegals, the State must ensure that they are granted ‘similar rights and facilities afforded to
lawyers, to the extent necessary to enable them to carry out their functions with independence’.970
The Principles declares the right to a fair trial, which includes the right to ‘equality of arms’ and the
right to legal representation, regardless of the nature of the proceedings, non-derogable under any
circumstances.971 The failure, therefore, to provide legal assistance, including legal aid, to an individual
who meets the means and the merit test, would constitute a violation of the right to a fair trial. Failure
to provide access to legal representation, which, at the least constitutes representation by a paralegal,
under these circumstances, would do likewise.
In the Second Periodic Report under the Banjul Charter, the State highlighted the ‘sterling work done
[by Legal Aid South Africa] in advancing access to justice for indigent persons in need of legal
representation’.972 The Report also draws attention to international interest in and regard for the
measures taken by the Legal Aid Board.973 It nevertheless acknowledges that the demand outweighs
supply.974 The statistics for 2012/2013, which the Report presents, highlight the State’s efforts, although
less than 1.5% of a population of approximately 54 million have received legal aid during this period.975
Specific reference is made to the assistance provided by paralegals, although this assistance seemed to
be confined to providing advice.976 The concluding comments of the African Commission on this
Report had not been published by the time the dissertation was submitted, although the Report was
considered at the 58th Ordinary Session of the Commission in April 2016.977
Despite the aforementioned international and regional support for the right to legal assistance,
particularly legal aid, it is important to note that these instruments can never be regarded as replacements
for well-functioning domestic legal systems. International and regional remedies are a last resort, when
968
Principle H (g) and (h).
969
Principle H (h).
970
Principle H.(k)
971
Principle R.
972
At para 155.
973
At paras157-158.
974
At paras 157-158.
975
At para 156.
976
At para 156.
977
African Commission on Human and Peoples’ Rights, Final Communiqué of the 58th Ordinary Session of the
African Commission on Human and Peoples’ Right, (2016) Banjul, Islamic Republic of the Gambia.
160
the domestic mechanisms designed to ensure the protection of human rights standards have failed.
Therefore, the right to legal assistance in civil matters in South Africa will be examined next.
6.4. A RIGHT TO LEGAL ASSISTANCE UNDER SECTION 34 OF THE CONSTITUTION

OF SOUTH AFRICA
A legal positivist interpretation of the right to legal assistance under section 34 of the Constitution is
not complicated. Such an examination will first show that there is no express right to legal assistance
contained in section 34 and, secondly, find that the courts are reluctant to recognise the existence of a
general right to legal representation beyond the proceedings in a conventional court of law, whether at
the expense of the individual or the State.978
The notion that the non-derivative (express) right to procedural justice in civil matters does not include
a derivative (implied) right to legal assistance is, in the author’s view, irrational. Admittedly, there is
an absence of the codification of the right to legal assistance, including legal aid in civil matters, beyond
the express constitutional right to legal representation.979 This may be regarded by some legal scholars
and jurists as an invitation to interpret section 34 in a manner that reduces this right to a mere moral
background claim. This is tantamount to suggesting that the right to the political franchise of Black
voters prior to 1994 was such a claim, as no law at the time made express provision for it.
A consequence of reducing the right to legal assistance in civil matters for persons 18 years and older
to a moral background claim renders the enjoyment of this derivative right dependent upon an express
codification thereof through policy (legislation), executive and administrative action (practice) and
litigation (adjudication). This places the onus on the poor and the marginalised to advocate, litigate
and/or agitate for change in policy or practice.
In the absence of an express constitutional right to legal assistance in civil matters for persons 18 years
and older, litigation is hardly an option unless these individuals or groups are assisted legally.
Advocating for change in policy and practice requires a level of legal literacy to exercise influence over
administrative and legislative procedures. This requires legal assistance. Agitating for change involves
activities such as demonstrations that must occur within the confines of the law. Knowledge and
understanding of these laws is essential for obedience to them, which may require legal assistance. This
978
Legal Practice Act (2014); Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Others (2000);Magidiwana and Others v President of the Republic of South Africa and Others (2013);
De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being and Another 2015
(CCT223/14) ZACC 35 (CC); Legal Aid South Africa v Magidiwana and Others (2015).
979
See sections 35 and 28 of the Constitution of the Republic of South Africa, 1996.
161
presents a peculiar conundrum. In order for the poor and the marginalised to enjoy the right to legal
assistance in civil matters, they must advocate, litigate and/or agitate for its express codification in
policy or through practice, within the confines of the law, without legal assistance. If they indeed had
the agency to do so, they would not need the legal assistance. The irrationality of this state of affairs
requires no further exposition.
The Constitution expressly recognises the right to legal representation in criminal matters980 as well as
civil matters which involve persons younger than 18.981 This study, therefore, argues that without the
derivative right to legal assistance, the non-derivative right of access to procedural justice, and as a
consequence substantive justice, cannot be protected. The protection of the right of access to justice
may require legal assistance in the form of legal aid.
6.5. SECTION 34 AND THE RIGHT TO LEGAL REPRESENTATION
Section 34 of the final Constitution has a drafting history. Its predecessor, section 22 of the Interim
Constitution did not contain the right to a fair hearing. Section 22 read: ‘Every person shall have the
right to have justiciable disputes settled by a court of law or, where appropriate, another independent or
impartial forum.’ The absence of express reference to a fair hearing led to the conclusion by the court
in Bernstein v Bester that it was doubtful whether this section conferred the right to a fair hearing in
civil matters. However, the wording was altered in section 34 of the final Constitution which now
makes express provision for a ‘fair and public hearing’. This provision was not subjected to challenge
during certification of the Final Constitution, which indicates that the various parties reached consensus
that the right to a fair hearing is an essential component of the right of access to the courts and other
dispute resolution fora.982 The constitutional right to legal representation in civil proceedings before a
judicial or quasi-judicial forum is inescapably linked to the right to a fair hearing. Jurisprudence shows
that a distinction is drawn between the right to legal representation in a court of law and other fora.
The right to legal representation in a court of law
The right to legal representation in civil matters in a court of law is not expressly provided for in
section 34. The rules of the various conventional courts and other adjudicating mechanisms, including
commissions of enquiry, nevertheless make express provision for it.983 However, it is trite that this
980
Section 35.
981
Section 28.
982
In Re: Certification of the Amended Text of the Constitution of The Republic Of South Africa 1996 (CCT37/96)
ZACC 24 (CC).
983
See Chapter 7 for a more detailed discussion.
162
provision in the Bill of Rights did not alter the common law position in respect of this right, but
entrenched it implicitly as a fundamental right. In Goldberger v Union and South West Africa Insurance
Co Ltd,984 Howie J stated that:
‘When the claimant tells his story at the trial in the course of evidence he enjoys the
protection of the Court and the questioning and cross questioning are regulated by rules
of evidence and procedure. If the claimant is entitled to legal representation in those
circumstances then by all that is fair and just he should be entitled to it where he is
obliged to undergo extracurial questioning without those advantages and restraints.’985
Since then the right to procedural justice was entrenched in both the Interim Constitution (IC) and the
Final Constitution of South Africa (FC). Neither section 22 of the IC nor section 34 of the FC makes
express reference to the right to legal assistance in the form of legal representation in civil proceedings.
However, there is jurisprudence that supports the view held in this thesis that section 34 of the FC
contains a derivative right to legal representation in a court of law. In a decision that was handed down
involving the right to legal representation under section 22 of the Interim Constitution, Mdlanga J
expressed the position of the court as follows:
‘I accept … that, even though there be no specific mention of the right to legal
representation in civil cases, the right of access to court and of having justiciable
disputes settled by courts would be rendered entirely nugatory if, in respect of civil
proceedings, it were to be held that there is no constitutional right to legal
representation. … even the best educated lay people need the assistance of professional
legal representation to exercise their right to access to court in a meaningful way. This
applies with more force in respect of the vast numbers of uneducated and illiterate
people of this country. … [Such a conclusion] accords with an interpretation that views
the Constitution for what it is - a living document.’ 986
A party to civil proceedings in a court of law thus has an unqualified constitutional right to legal
representation. Any limitation of this right will have to be subjected to the scrutiny of the limitation
clause. This is not the position in other dispute resolution fora.
984
Goldberger v Union and South West Africa Insurance Co Ltd (1980).
985
Page 165.
986
Bangindawo and Others v Head of the Nyanda Regional Authority and Another; Hlantlalala v Head of the Western
Tembuland Regional Authority and Others 1998 (3) SA 262 (TK) p. 277.(own emphasis added).
163
The right to legal representation in another independent and impartial tribunal or forum
The common law position on the right to legal representation in fora other than courts of law, for the
most part, remained consistent.987 Malan J reaffirmed the common law position in CCMA v Law
Society, Northern Provinces, and held that ‘[t]he courts have consistently denied entitlement to legal
representation as of fora other than courts of law’.988 The court cited with approval the earliest views
expressed by Innes CJ almost a century ago: ‘No Roman-Dutch authority was quoted as establishing
the right of legal representation before tribunals other than courts of law, and I know of none.’ 989
Needless to say, much water has flowed under the bridge since. For the purpose of this study, the most
relevant is the enactment of South Africa’s Constitution.
Malan J nevertheless noted that the common law recognises the ‘right to a procedurally fair hearing in
civil and administrative matters’.990 He conceded that, as a consequence, ‘the circumstances of the case
[may] require recognition of the right to legal representation’.991 The current position in South Africa
is thus that there is no unqualified constitutional right to legal representation in fora other than courts.
This was confirmed by the Constitutional Court in Legal Aid South Africa v Magidiwana and Others.
Assuming that this is indeed the correct view, the question arises as to whether a party to the proceedings
before a judicial, quasi-judicial or non-judicial forum, who is entitled to legal representation, has the
right to this representation at the expense of the State. This requires an examination of the right to legal
representation at the expense of the State in a judicial, quasi-judicial and non-judicial forum.
The right to legal representation at the expense of the State in a court of law
A number of academic writers have expressed the opinion that owing to the limited resources of the
State it is improbable that section 34 will be interpreted in a manner that places a positive obligation on
the State to provide legal aid in civil matters. 992 De Waal, Currie and Erasmus opined that:
‘(s)uch an interpretation would mean that individuals are entitled to financial assistance
from the state to have their disputes resolved by a court or another forum, and to legal
representation in some cases. The reality of the limited state resources is likely to
987
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others (2000),
para 5; MEC Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2005), para 11;
Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (2013),
para 19; Dabner v South African Railways and Harbours 1920 AD 583 1920 AD 583.
988
At para 19. (own emphasis added)
989
Dabner v South African Railways and Harbours 1920 AD 583 (1920) p. 598.
990
At para 19.
991
At para 19. (own emphasis added)
992
De Waal, J , Currie, I & Erasmus, G (2013); Mcquoid-Mason, D (2013).
164
discourage such an interpretation of s 34. This is unfortunate, since the single biggest
impediment to access to justice is the prohibitive cost of litigation’.993
The authors are indeed correct in concluding that an entitlement will ensue from such an interpretation.
However, there is a fundamental flaw with the rest of the opinion expressed above. First, section 34
imposes a constitutional obligation on the State to provide access to procedural justice. This section
contains no inherent limitation. A denial of the means to access the courts and other dispute resolution
fora for those who are not by the means to do so, amounts to a limitation of the right of access to
procedural justice, which triggers the scrutiny of section 36 of the Constitution.
Secondly, the authors conflate the two stage enquiry into the limitation of the right. Stage one
determines the existence of the right; in other words, its scope, meaning and the conditions for its
application. Once these have been established, the enquiry shifts to determining whether there has been
a limitation of the right. A finding of a limitation of the right triggers stage two of the enquiry, which
determines whether there is justification for the limitation taking into consideration listed and other
factors. The authors have incorporated a factor that influences justification for the limitation of the
right994 into stage one of the enquiry, concluding that it is unlikely that the right will indeed be deemed
to exist. The existence of the right is not dependent on the resources of the State, while its limitation
might be, although the State’s action would be subjected to a further enquiry into less restrictive means
to limit the right.
Thirdly, the authors may revise their position slightly following the decision of the Constitutional Court
in Legal Aid South Africa v Magidiwana and Others, which will be discussed below.995
Brickhill and Friedman also criticised this view, albeit for a slightly different reason. 996 They advised
that the authors ‘confuse the content of the right with the remedy that the court should (or is likely to)
grant on the basis of the right’.997 They claim that the mere fact that section 34 does not expressly
include the right to legal representation does not preclude the courts from interpreting section 34 in a
manner that indeed includes such a right.998
993
994
Stage 2 of the enquiry.
995
Legal Aid South Africa v Magidiwana and Others (2015).
996
997
At page 68.
998
Own emphasis added.
165
Once a party to civil proceedings has an entitlement to legal representation before a court of law, it
follows that there will be circumstances under which the State will be obliged to fund that legal
representation. LASA (Legal Aid South Africa) acknowledges this, and has recently included section
34 as part of their constitutional mandate.999 LASAA (Legal Aid South Africa Act) expressly makes
provision for it by mandating LASA to ‘… provide legal representation to persons at state expense ’.1000
LASAA draws no distinction between civil and criminal matters. LASA is, therefore, mandated to
provide legal representation at the expense of the State, on merit, regardless of the nature of proceedings.
The policy framework for dispensing legal aid contained in the Legal Aid Guide1001 expressly provides
for legal aid to ‘a litigant who is indigent in a civil matter…if the matter has prospects of success on a
balance of probabilities’.1002 The Legal Aid Guide further states that LASA grants legal aid to ‘[a]ll
children resident in [South Africa]’ and ‘[a]ny indigent person who qualifies for legal aid under [the]
guide’, provided that such person is ‘physically resident’ in the country and ‘a citizen or permanent
resident’ of South Africa.1003 The constitutional right to legal aid for legal representation in civil
proceedings in a court of law in South Africa, where the interests of justice so require, is thus not in
dispute.
However, the Constitution does not provide for an unqualified right to legal representation at the
expense of the State, whether in civil or criminal proceedings.1004 The right to State-funded legal
representation is qualified by the phrase ‘if substantial injustice would otherwise result’.1005 This
qualification is given expression through a means and merit test, which is detailed in the Legal Aid
Guide. The recent Constitutional Court enquiry into the right to legal representation before a forum
other than a court of law yielded an interesting outcome and will be examined next.
The right to legal representation at the expense of the State in a quasi-judicial and
non-judicial forum
The author contends that Legal Aid South Africa v Magidiwana and Others currently stands as the
authority for the right to legal representation at the expense of the State in fora other than a court of law.
The court cautioned that the factors that were taken into consideration are context-specific, and that ‘it
999
Legal Aid South Africa, Integrated Annual Report 2015-2016, (2016) .
1000
Section 3 of the Legal Aid South Africa Act Legal Aid South Africa Act (2014).
1001
Legal Aid South Africa (2014)..
1002
Chapter 2.4, Outcome 1.
1003
Legal Aid South Africa (2014).
1004
Sections 28(h), 35(2)(c) and (g).
1005
Sections 28(h), 35(2)(c) and (g).
Legal Aid South Africa (2014).
166
is therefore not feasible, nor desirable to lay down an inflexible list of such considerations’. 1006
Inasmuch as the Constitutional Court was at pains to confine the ruling to the particular case at hand,
the minority judgement of Nkabinde J highlights the far-reaching legal consequences of the court’s
decision.1007 The majority found that circumstances existed which necessitated legal representation at
the expense of the State even though the tribunal in question was not of a judicial or quasi-judicial
nature.
The author is persuaded by the opinion expressed by Nkabinde J. She argued that the claim by the
majority that the decision of the court is confined to the unique circumstances before the court and will
therefore have no practical effect, will not pass muster. A decision of the court is not without practical
effect because the court claims that it is so. At the time when the appeal was heard by the Constitutional
Court, LASA had already agreed to fund the applicants, while the Legal Aid Guide was subsequently
adapted to include commissions of enquiry as fora where legal representation at the expense of the State
may be required.1008 A further consequence is that an additional group of persons are now entitled to
place demands on the limited resources allocated to LASA. This is the practical effect of the High
Court’s ruling in favour of the requestors for legal aid. LASA’s inability to meet the need of those who
already qualified prior to this application is a matter of public record.1009
Nkabinde J points out that the principles of judicial precedent and equality in the legal process militate
against the constitutional endorsement of the High Court’s view that the decision has narrow
application.1010 Magidiwana thus stands as authority for the following principles:
(i) Section 34 applies to non-judicial fora where express provision is made for legal representation;
and
(ii) Section 34 obliges LASA as the vehicle through which the State dispenses legal aid to fund
legal representation for parties in civil proceedings before a non-judicial forum who meet the
criteria set out by the court.
The court’s dismissal of LASA’s concern over the practical effect of extending the right to legal aid to
a new category of persons, followed by an emphasis on the narrow application of section 34 to
1006
At para 38.
1007
At paras 83-84
1008
At para 4.20.
1009
Legal Aid South Africa, Annual Report 2013-2014, (2014) ; Legal Aid South Africa, Annual Report 2014-2015,
(2015).
1010
At para 83 – 84.
In spite of this caveat, the court nevertheless endorsed a list of considerations that will stand as the benchmark against
which future applications will be measured.
167
non-judicial fora, amounts to closing the stable doors after the horses have bolted. This decision has
implications for quasi-judicial fora. Section 34 makes express reference to ‘courts and other dispute
resolution fora’,1011 not non-judicial bodies and Nkabinde J was swift to point out that the court’s
interpretation of section 34 was ‘too novel’ and ‘expansive’.1012 Yet, a purposive interpretation of
section 34, through the prism of the triumvirate of democratic values, which are guided by the
constitutional waymarks, resulted in the conclusion that the right to legal representation under section
34 includes non-judicial fora. Such a reading of section 34 was aided by the fact that the terms of
reference of the Marikana Commission, as amended, made express provision for legal representation of
a party to the proceedings.1013
It is, therefore, reasonable to conclude that, where similar factors exist for a party before a quasi-judicial
forum, LASA would have an obligation to fund legal representation. This follows after the highest
court in the land ordered LASA to do so for parties who were witnesses in proceedings before a non-
judicial body, and not opposing parties to an adversarial process in a judicial or quasi-judicial forum.
Should parties that belong to the latter group qualify for legal aid in terms of the criteria set out by the
court, and denied legal aid upon request, their constitutional right to equality before the law and equal
benefit of the law would then be at issue.1014
The High Court considered a number of factors in arriving at its decision to order LASA to fund the
legal representation of the applicants. These include:
(a) substantial and direct interest of the applicants in the outcome of the Commission;
(b) the vulnerability of the applicants as participants in the proceedings of the
Commission;
(c) the complexity of the proceedings and the capacity of the applicants to represent
themselves;
(d) the procedures adopted by the Commission;
(e) equality of arms; and
(f) the potential consequences of the findings and recommendations of the
Commission for the applicants.1015
1011
Own emphasis added.
1012
At para 33.
1013
Regulation 8 of the regulations adopted pursuant to the Terms of Reference provided that ‘[a]ny person appearing
before the Commission may be assisted by an advocate or an attorney’.
1014
Section 9(1).
1015
At para 38.
168
Makgoka J concluded that these factors ‘locate the commission squarely within the purview of section
34 of the Constitution’ as they call for fairness and equality of arms.1016 Fairness, as imprecise as it
may be, is thus central to an inquiry into the right to legal representation in adjudicating fora and equality
is at the heart of that fairness inquiry. The court held that the constitutional rights of indigent and
vulnerable applicants were implicated in the proceedings and threatened by the outcome of the
proceedings. Having concluded that section 34 confers a constitutional right to legal representation
before the commission, the court concluded that the rule of law and the interest of justice required that
the State is obliged to fund the legal representation.1017 The right to a fair hearing in section 34 has
been read in Magidiwana as giving rise to a qualified right to legal representation at the expense of the
State before a dispute resolution forum other than a court of law.1018
This study acknowledges that there is no unqualified constitutional right to legal representation in fora
other than courts in South Africa. It also acknowledges that there is no unqualified constitutional right
to legal representation at the expense of the State in a court of law or other dispute resolution fora.
However, this does not imply that there is no need for other forms of legal assistance such as
information, advice and support in fora which preclude legal representation or where parties to the
proceedings represent themselves. Certain courts and tribunals are already making provision for such
assistance and LASA has recently introduced an information service as part of its legal services. 1019 It
must be stated though that this form of assistance at quasi-judicial fora is no replacement for the agent
who acts for and on behalf of the party to the proceedings, whether the agent is a legal or a paralegal
practitioner.1020
A lack of legal assistance where legal representation is not provided for, may impact in equal measure
on the fairness of the proceedings before the adjudicating mechanism. This is available to those parties
who can afford to consult a practitioner of the law. However, the limitation of the right to free
information, advice and support for those who cannot afford it prior to and during civil proceedings
before an adjudicating forum, may impact on their right to equality in the legal process and thus
compromise the fairness of the proceedings and the outcome.
1016
At para 66.
1017
At para 68.
1018
This qualified right is determined upon consideration of the aforementioned factors set out by the court.
1019
Examples include the equality courts, small claims courts and the CCMA.
1020
See the reference to the results of the effectiveness of ADR in the credit industry in Chapter 7.
169
Limitations to the right of legal representation at the expense of the State
Jurisprudence recognises the existence of an implied, qualified constitutional right to legal

representation in civil proceedings before judicial, quasi-judicial and even non-judicial fora. LASA has
the unenviable task of allocating the limited resources that the State provides for legal aid. LASA,
therefore subjects applications for legal aid in civil matters to two levels of qualification. The first
involves a screening to determine whether the matter falls under one of the approved categories1021 or
the exclusions listed in the Legal Aid Guide.1022 The second level of qualification is a means and a
merit test, which is embodied in the phrase, ‘if substantial injustice would otherwise result’. According
to the Legal Aid Guide, an application may nevertheless be declined owing to the limited resources of
the State.1023 The first level of qualification mostly involves the prioritization of the needs of the most
vulnerable members of society and this prioritisation is therefore not at issue. The ensuing discussion
focuses on the second level of qualification and the limitations of legal aid based on the limited
resources of the State. LASA’s means and merit test and the limited resources of the State will thus be
considered next.
LASA’s means and merit test
LASA qualifies access to legal aid by subjecting it to a means and merit test in most cases to determine
whether ‘substantial injustice would otherwise result’, as expressly required by the Constitution in some
instances,1024 and implied in another.1025 The Legal Aid Guide contains a set of criteria in civil matters
that defines ‘substantial injustice’ in practice which is more stringent than the criteria in criminal
matters. The criteria, which are listed in the Legal Aid Guide include,
(a) The seriousness of the issue for the person, for example, if the person’s constitutional rights or
personal rights are at risk;
(b) The complexity of the relevant law and procedure;
(c) The ability of the person to represent himself or herself effectively without a lawyer;
(d) The financial situation of the person;
(e) The person’s chances of success in the case; and
(f) Whether the applicant has a substantial disadvantage compared with the other party in the
case.1026
1021
At paras 4.9.2 – 4.20.
1022
At paras 4.9.1 a) – q).
1023
At paras 4.1 and 4.9.
1024
Sections 28 and 35.
1025
Section 34.
1026
At para 4.9.
170
The Legal Aid Guide further states that, ‘[w]here these criteria are met, the applicant should get legal
aid as long as Legal Aid SA has the necessary resources and the other requirements of the Guide are
met’.1027 The criteria listed contain features of a means and a merit test, which determines whether legal
aid should be granted. The means test is reflected by the criterion labelled: ‘The financial situation of
the person’ and determined by a formula that is reviewed on a regular basis by LASA.1028 The rest are
features of a merit test and include the seriousness of the outcome for the applicant,1029 the complexity
of the proceedings1030 and the probability of success.1031 LASA further seeks guarantees for applications
in civil matters1032 and requires evidence of inequality of arms1033 that are not required for legal aid in
criminal matters. The Legal Aid Guide states clearly that:
‘A litigant who is indigent in a civil matter will only be granted legal aid if the matter
has prospects of success on a balance of probabilities. This depends on the resources
where substantial injustice would result.’1034
Therefore, even when the above criteria have been met, the civil matter may nevertheless fall outside
the approved categories or are included in the list of exclusions. Furthermore, according to the Legal
Aid Guide, even if the applicant has passed the screening process, the limited resources of the State
may merit exclusion. If this interpretation of the Legal Aid Guide is correct, this limitation, as well as
‘the limited resources of the State’, could constitute an infringement of the right to equality and the right
to a fair hearing, which would invite a section 36 enquiry into the infringement.
The limited resources of the state as a barrier to legal assistance
LASA functions within a budget that is determined by the State. LASA, by default, and the State, by
design, introduces a limitation upon a first generation right,1035 which the Constitution only imposes on
second generation rights.1036 Inasmuch as the courts are at pains to maintain the separation of powers
and will not dictate to the State how it should allocate its resources, the Constitutional Court, as the
custodian of the Constitution, would be remiss in its obligation should it endorse this limitation.
1027
At para 4.9.
1028
Legal Aid South Africa (2014), para 4.9(d).
1029
At para 4.9(a).
1030
At para 4.9(b).
1031
At para 4.9(c).
1032
At para 4.9(e).
1033
At paras 4.9(c) and (f).
1034
At para 4.1 (own emphasis added).
1035
Right to procedural justice.
1036
Socio-economic rights.
171
In determining the validity of the funding policy of the State to private Child and Youth Care Centres,
the High Court applied the following test:
‘The test is whether the policy is a reasonable measure to the maximum extent of
available resources or within available resources to achieve the progressive realisation
of the rights. The test is not whether the policy is the best or most desirable measure
possible. Availability of resources is therefore an important factor in determining what
is reasonable, but lack of funds cannot be used as a lame excuse. Resources must be
provided as far as reasonably possible. Reasonableness must also be understood in the
context of the Bill of Rights as a whole. Whilst the very nature of progressive
realisation of rights entails that full realisation will only be achieved in time, those
whose needs are the most urgent should not be ignored in the policy, nor should a
significant segment of society be excluded.’1037
Although the above dictum was delivered within the context of the progressive realisation of second
generation rights, it nevertheless finds application here. The prioritisation of the needs of certain
categories of vulnerable communities (minors, women, the elderly, and the deeply poor) by LASA
cannot be faulted, as these constitute the most vulnerable members of South African society. However,
the excessively skewed ratio between the legal aid budget allocated to criminal matters compared to
civil matters, is cause for concern.1038 The prison population comprises less than 0.3% of the South
African population, which includes trial awaiting prisoners.1039 Even if the number of accused who are
not remanded equals ten times those who are incarcerated, it is still clear that the greater portion of legal
aid resources are concentrated on a minute percentage of the population,1040 whereas the majority of the
country’s citizens do not have their primary legal needs met. LASA thus prioritises the possibility of
physical incarceration over the possibility of incarceration by poverty.
More importantly, comparative studies have shown that there is an economic rationale for taking legal
aid to scale, which casts doubt on the State’s reliance on its limited resources to limit access to legal
1037
National Association of Welfare Organisations and Non-Governmental Organisations and Others v Member of
the Executive Council for Social Development, Free State and Others 2014 (1719/2010) ZAFSHC 127, para 13. (own
emphasis added).
1038
See the discussions in Chapter 2 on the Republic of South Africa, Second Periodic Report under the African
Charter on Human and Peoples’ Rights and Initial Report under the Protocol to the African Charter on the Rights of
Women in Africa, (2015) .
Legal Aid South Africa (2015). shows that 88 percent of LASA’s budget is spent on criminal matters compared to 12
percent on civil matters.
1039
Walmsley, R, World Prison Population List, 11th ed, (2016) World Prison Brief..
1040
LASA allocated 88 percent of the legal aid budget to criminal matters and 12 percent to civil matters in the
2014/15 financial year.
172
assistance. In the submissions to the Public Commission on Legal Aid in British Columbia, it was
pointed out that ‘short-changing legal aid is a false economy’.1041 First, the legal problems of those who
are unable to access the system do not disappear, but are rather compounded by the inaction. The
expenditure related to this legal problem for the Department of Justice and Correctional Services is thus
merely shifted to other departments such as Social Development and Health.
Secondly, those who access the system but are unrepresented, add to court delays. Agents who are
employed to serve public interest such as the police and social workers are caught up in these delays,
which impede on them performing their primary function within communities. These delays add to the
expense of the hearing, as facilities and human resources have to be provided for each sitting.
Thirdly, those who are represented and are granted legal aid receives this assistance at the apex of the
dispute, where it is the most burdensome on the State’s resources. Furthermore, where primary legal
aid is absent there is no screening device for civil disputes with the result that the courts become the
frontline hospital theatres for some of these disputes. This increases the pressure on the courts at a level
where the dispute becomes most complex and most expensive on the parties and the State.
Statistics that have been gathered from the United States of America, Australia and the United Kingdom
show that legal aid more than pays for itself. For every dollar ($1) spent on legal aid, the State managed
to save between $1,60 and $30.1042 This is a powerful motivation for the State to provide primary legal
aid in civil matters even if its constitutional obligation does not move it to do so.
Most significantly, establishing a comprehensive, integrated primary legal assistance system has the
potential for job creation by the State as well in the private sector as it would give rise to a para-
profession that fills the justice gap that exists currently in South Africa. This para-professional is the
paralegal. Bearing in mind that the current unemployment rate in the country now stands at 26,5
percent, more qualitative and sustainable job opportunities should be created.1043 This means that in the
1041
Matthews, S, Making the Case for the Economic Value of Legal Aid - Briefing Note, (2011) .
1042
PriceWaterhouseCoopers, Economic value of legal aid: Analysis in relation to Commonwealth funded matters
with a focus on family law, (2009) Australia: National Legal Aid; Richardson, JA & Heidelberg, RL, Legal Services
Programs in Louisiana: Their Economic Impact on the State of Louisiana, (2011) Louisiana, US p. 5; Feelhaver, R &
Deichert, JA, The Economic Impact of Legal Aid of Nebraska 2007, (2008) Nebraska, US p. 14; Florida TaxWatch,
The Economic Impact of Legal Aid Services in the State of Florida, (2010) ; The Task Force to Expand Access to
Civil Legal Services ion New York, Report to the Chief Judge of the State of New York, (2010) New York, USA p. 14;
The Perryman Group, The Impact of Legal Aid Services on Economic Activity in Texas: An Analysis of Current Efforts
and Expansion Potential, (2009) Texas, USA; Citizens Advice, Toward a Business Case for Legal Aid, (2010) p. 2;
Granberry, Phillip Albelda, R, Assessing the Benefits of Provision of Legal Services through the Disability Benefits
Project, (2006) Boston, USA p. 11.
1043
Statistics South Africa, “Quarterly Employment Statistics Q4 2016”, (2017), available at: Media Release
http://www.statssa.gov.za/?p=9769. (accessed 5 May 2017)
173
services sector, service providers will have to develop the capacity to respond to and provide for the
changing needs of clients. The well-trained paralegal has the potential to be such a service provider.
LASA is not only empowered to employ legal practitioners and candidate attorneys but most
importantly, paralegals too. Moreover, bearing in mind that the right to legal aid in civil matters is
limited by the State’s resources, it is even more important to re-define legal services and determine
which of these can be rendered more cost effectively by paralegals. This casts doubt on the State’s
limited resources as a justification for limiting the right to civil legal aid.
The Law Commission proposed in 1997 already that primary legal services which paralegals render
should be recognised and that the State should assume full responsibility for providing funding for this
service.1044 If the State is committed to establishing an egalitarian and just society, it has to add legal
assistance alongside the other pillars, namely education, health care and social assistance.1045
However, neither LASAA nor the Legal Aid Guide 20141046 provides any definition for legal aid, legal
advice or legal representation. There is, therefore, a conflation of primary and secondary legal services
with the focus on legal services that the narrow legal profession provides. The justice sector and the
narrow legal profession, therefore, have to re-define legal services and re-imagine the agents that deliver
these services.
In University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional
Services and Others 1047 the indispensability of the right to procedural justice in South Africa, especially
for the marginalised and the poor, and its derivative right to legal assistance, not only legal
representation, including legal aid, was most aptly demonstrated.1048 It showed that the dignity of the
vulnerable remains up for barter through predatory practices in the commercial sphere, while the
1044
South African Law Commission, Simplification of criminal procedure: Discussion Paper 96 (Project 73), (2001)
South African Law Reform Commission p. 47.
1045
Doust, LT, Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia, (2011)
Vancouver, Canada: Public Commission on Legal Aid.
1046
Section 24 of LASAA directs the board to compile, update and approve a Legal Aid Guide.
1047
University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and
Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others (2016).
1048
One of the applicants is a farmworker, the sole breadwinner, who earned R2 450 per month. The deductions on
his salary, including a garnishee of R600, totalled R1 194. This left him with a net salary of R1 263 with which he
had to support a family of seven. He applied for a loan and was granted the loan based on the assessment done in
terms of section 81(2) of the National Credit Act by the credit grantor. According to this assessment he apparently
spent only R50 per month on food. He approached the credit grantor for a second loan to purchase a Blackberry
smartphone which was also granted. The phone was stolen, which he reported and he requested a replacement phone
from the credit grantor, which was declined. The applicant then changed banks and ceased payment to the credit
grantor. The credit grantor allegedly used documents on which the applicant’s signature was forged to obtain default
judgements and an emoluments attachment order against the applicant. The applicant’s employer who was requested
to give effect to the emoluments attachment order demanded the documentation. This is how the matter came to light.
174
applicants, in the absence of legal assistance, would have continued to suffer injustice at the hands of
non-State actors who use their knowledge of the legal system to wield the law as an instrument of
exploitation.
This simply serves to confirm the need for legal assistance in South Africa, whether in a judicial or
quasi-judicial forum, or beyond, and the need for legal aid for those who cannot afford such assistance.
Without legal assistance, the majority of citizens in the country may not even be aware of their rights,
let alone be aware that their rights have been violated and, therefore, may not have the agency-freedom
or the option-freedom to claim, defend and enforce their rights. This study therefore advocates for the
human right to legal assistance beyond legal representation in a court or other dispute resolution forum.
6.6. THE RIGHT TO LEGAL ASSISTANCE BEYOND LEGAL REPRESENTATION IN A

COURT OR ANOTHER DISPUTE RESOLUTION FORUM
Barriers to access justice result in a need for legal assistance beyond the conventional courts and other
dispute resolution fora. The author advances the argument that a legal empowerment agenda depends
on it and the social contract embodied in the Constitution demands it.
Legal empowerment and the right to legal assistance
The shortcomings of the rule of law orthodoxy, as a developmental paradigm, is summarised by the
following statement made by a Dean of a university law school1049 in one of the wealthiest countries in
the world:1050
‘Inequalities of wealth and power undermine a system based on the rule of law; legal
complexities cannot be navigated without competent representation; and legal
representation is often unavailable to people with limited [or no] wealth or knowledge
about the system’. Unmet need for legal services for both poor and moderate-income
people [in the United States] is vast.’1051
1049
Edwin W. Hadley Professor at Law at Northeastern University School of Law (July 2002 – August 2012)
1050
The United States of America is ranked in 13th position on the list of the richest countries in the world with a GDP
of $53,001 based on PPP (Knoema, “World GDP per Capita Ranking 2016 | Data and Charts | Forecast”, (2016),
available at: https://knoema.com/sijweyg/world-gdp-per-capita-ranking-2016-data-and-charts-forecast.). (accessed 5
January 2017).
1051
Spieler, EA, 'The Paradox of Access to Civil Justice: The’GLUT’of New Lawyers and the Persistence of Unmet
Need', (2013), 44, University of Toledo Law Review, pp. 365–403. p. 366.
175
Across the Atlantic Ocean, in a country, which is rated as having the second most unequal society in
the world,1052 former Constitutional Court Judge and struggle icon Albie Sachs, in similar fashion,
issued a stark reminder of the disempowering effect of the inequalities within the South African society:
‘The poor are as frequently oppressed by the law as they are freed by it. They are
frequently unaware that they indeed do have rights, and even more in the dark as to
how they can enforce it.’1053
It is clear from the aforementioned statements that, where inequality persists, vulnerable communities
in wealthy and not-so-wealthy nations share similar challenges in respect of access to justice. The poor
and the not-so-poor do not have their legal needs met, and this undermines the legitimacy of the rule of
law. In economically developing and developed countries alike, the laws that are intended to benefit
the poor often exists on paper only, unless the poor insists that these laws are practiced. In view of the
skewed power relationships brought on by the disadvantage that the poor suffer, they require assistance.
However, the poor are not passive recipients of the benevolence of benefactors. This assistance cannot
only be ‘top down’ and State-centred, nor should it only focus on law reform and government
institutions, particularly judiciaries.1054 The establishment of business-friendly legal systems that
encourage poverty alleviation requires a multi-pronged, multi-level approach with the poor at the
centre.1055 This is a core reality that the rule of law orthodoxy overlooks.
The rule of law orthodoxy, and its lack of success to bring about a transformation in these unbalanced
power relationships within society, prompted the consideration of the legal empowerment paradigm in
the international developmental agenda.1056 The rule of law orthodoxy was challenged, not for its
political and economic goals, but for its ‘questionable assumptions, unproven impact, and insufficient
attention to the legal needs of the disadvantaged’.1057 The disadvantaged must be legally empowered to
use the law, legal systems and alternative dispute resolution systems to improve and transform their
1052
South Africa has a GINI index of 6.1 and is ranked in 2 nd position
South Africa is also in 87th position on the list of richest and poorest countries in the world with a
GDP of $13,078.00 (Gregson, J, “The Richest Countries in the World”, (2017), available at: Global Finance
https://www.gfmag.com/global-data/economic-data/richest-countries-in-the-world?page=12.). (accessed 15 March
2017).
1053
Public Interest Law Institute, Making Legal Aid a Reality: A Resource Pook for Policy Makers and Civil Society,
(2009) Budapast, Hungary: Public Interest Law Institute p. 7.
1054
Golub, S (2003).
1055
Golub, S (2003).
1056
Golub, S (2003).
1057
Golub, S (2003) p. 3.
176
social, political and/or economic situations. In so doing, rights holders are able to hold State and non-
State power holders and duty bearers to account, and hence contest unjust power relations.1058
Legal empowerment is not a magic elixir to alleviate poverty but it provides a comprehensive strategy
to develop poor and marginalised communities, which reaches beyond the justice sector and the narrow
application of the rule of law. It employs legal assistance as an intervention to enable vulnerable
individuals and communities to alter unjust power relations within society. Throughout the literature,
it is clear that the community-based paralegal is a key role player in the facilitation of that legal
empowerment.1059
Legal assistance in South Africa, as a measure to enhance access to justice, had traditionally been
equated with legal representation by an advocate or attorney. Jurisprudence bears testimony to this
fact.1060 However, a range of factors demands a shift in this conventional practice. First, South Africa
has a democratically elected government that subscribes to a human rights-based approach to access
justice. This approach is given effect through a progressive Constitution, which aims to address the
vast inequalities that persist in the country. Exclusive reliance on the rule of law(yers) to address these
inequalities has, to date, not had the desired effect, as the inequalities in the country have persisted 1061
while multiple barriers to access to justice prevent vulnerable communities from claiming the protection
of the law. These barriers need to be systematically identified and removed so that these individuals
and communities are empowered firstly, to influence, access and use the mechanisms which are
designed to improve their lives and secondly capacitated to claim, enforce and defend their rights in
their daily interaction with State and non-State actors alike. A pro-poor approach to access justice
therefore requires a shift in the conceptual framework from the rule of law orthodoxy to legal
empowerment.
Secondly, this human rights-based approach requires the legislative framework in the country to be
aligned to its grundnorm, namely South Africa’s Constitution. The State, albeit through the prompting
of the courts in some instances, has embarked on a systematic dismantling of the legislative framework
that was inconsistent with the Constitution, replacing it with one that reflects the values and attitudes
1058
1059
See Chapter 9.
1060
De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (2015);
Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (2013);
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others (2000);
Magidiwana and Others v President of the Republic of South Africa and Others (2013).
1061
Lehohla, P, Census 2011: Income dynamics and poverty status of households in South Africa, (2015) Pretoria,
South Africa.
177
of the new democratic legal order more accurately.1062 The purpose of these legal reforms in the main,
as aligned to its grundnorm, is to empower the poor and the marginalised.1063 The legal reforms created
a new order of citizen entitlement and State responsibilities. This resulted in an evolution of and an
increase in the legal needs of individuals and communities. These legal needs are not only of a criminal
nature but are also administrative and civil, and are concentrated at a primary level. There is thus a
need for information, advice, support and even representation beyond the conventional courts and other
adjudicating fora.
Multiple barriers impact on the capacity of vulnerable communities to claim these entitlements. Legal
services and thus legal assistance, as an intervention to enhance the capacity of these beneficiaries to
claim and enforce their rights, therefore, need to respond to the increase in and evolution of their legal
needs. A legal assistance strategy, as an intervention in the country, must capacitate the disadvantaged.
It must have due regard for the needs and preferences of the poor, and incorporate domestic ideas and
initiatives. It must focus beyond the justice sector, involve societal, legal and administrative actors, and
support civil society. This is the legal empowerment paradigm. Legal services should thus include
the continuum of services, which are identified in Figure 1,1064 and should include practitioners other
than attorneys and advocates. The contribution of community-based paralegals to the legal
empowerment of the poor, even in South Africa, has been recognised internationally.1065
Thirdly, the Constitution imposes an obligation on the State to provide access to procedural justice.
The State has complied with its constitutional obligation by creating the required infrastructure and
institutions, endorsing private institutions and by providing the necessary human resources.1066 Key
institutions that provide legal assistance include LASA, which discharges this obligation on behalf of
and at the expense of the State, and the private (narrow) legal profession, that offers this service for the
most part at the client’s expense. The State has acknowledged that its capacity to provide legal
assistance in civil matters for vulnerable communities falls short of meeting the demand for secondary
legal services owing to financial constraints.1067 Conversely, the private legal profession provides
secondary legal services primarily for gain. Yet, the majority of civil legal needs are basic and require
early intervention before it escalates into a dispute that requires intervention by a court of law or another
dispute resolution forum. Hence, there is a disconnect between the legal needs of the citizens and the
legal services that are provided.
1062
See Chapter 5.
1063
See discussions on the preamble in Chapter 3.
1064
Page 42.
1065
United Nations Development Programme (2008).
1066
See Chapters 7 and 9.
1067
See the Periodic Reports submitted to the United Nations and the African Union.
178
LASA and the private legal profession have barely addressed the demand for primary legal services.
The South African Law Commission identified this justice gap in primary legal services almost two
decades ago. It discovered the following:
‘Primary legal service is that which none of the practising lawyers, magistrates,
prosecutors have provided except by way of advice offices and public interest legal
service organisations…This is the broadest, primary area where legal services are
needed - but has no state budget, no private sector involvement and very few academics
interested.’1068
Little has changed since then, as LASA, in spite of extending legal services to include advice, seems to
have no State budget for comprehensive primary legal services, while the focus of legal aid remains
mainly on secondary legal services. The paucity of academic literature on the legal needs of the poor
and the paralegal in South Africa bears testimony to the interests of academics.
Conversely, the private legal profession, in the first instance, is not oriented to provide primary legal
services and, secondly has a conflict of interest, since its existence depends on providing legal services
for gain. It is also not appropriate for the courts to be frontline hospital theatres for civil disputes. This
calls into question the exclusive dependence on the narrow legal profession to deliver legal services in
the country, whether at the expense of the person desiring it, or at the expense of the State. The State
cannot afford comprehensive legal services for vulnerable communities, where these are exclusively
rendered by the narrow legal profession. Moreover, this does little to empower communities and
individuals to apply the law themselves in order to claim, enforce and advance their rights and interests
as citizens and economic actors. Legal empowerment provides a more comprehensive approach while
the use of paralegals presents a viable option.
The need for legal services, and hence legal assistance, including legal aid, extends beyond legal
representation, whether in a court of law, another dispute resolution forum, or beyond. A narrow
confinement of the definition of legal services to legal representation by an advocate or attorney
entrenches the notion that knowledge of the law and its application is the exclusive domain of the justice
sector and the narrow legal profession, which are made available through rendering a service to those
who can afford it, or at the benevolence of the State, non-profit organisations and the legal profession.
This is the conventional rule of law orthodoxy paradigm. A justice system in South Africa that renders
the right of access to justice exclusively dependent on access to the narrow legal profession, fails to
1068
South African Law Commission (2001).
179
empower its citizens, entrenches their inequality, impairs their dignity and curtails their freedom. The
current demand for legal aid under this conventional model is one that the State cannot possibly meet
which results in a justice gap. The State, therefore, has to find innovative ways to bridge this justice
gap.
Hence, this study proceeds from the premise that the State, as the primary regulator of the conduct of
all citizens, has a moral and a constitutional obligation to provide legal assistance, and not only legal
representation, to vulnerable communities in civil matters. The obligation is derived from the social
contract between the State and its citizens, which gave rise to the right to procedural justice as contained
in section 34 of the Constitution.
The social contract and the right to legal assistance
The law does not function distinct from, or in isolation of, its social context. The right of access to
justice demands that all role players in the justice system know and understand the law and its context,
particularly those who have to oversee its implementation. The Twenty Year Review of South
Africa1069 reported as follows:
‘In South Africa, the normal difficulties of accessing justice are exacerbated by gross
inequalities, the high cost of legal services and the remoteness of the law from people’s
lives…the demand for [legal aid] has escalated prodigiously and the cost of providing
these services far outstripped [LASA’s] annual allocation from government.’1070
The Review acknowledged that in spite of the progress made by government since 1994, there are still
serious challenges that remain in respect of the transformation of the judicial system, improving access
to justice, and bringing about economic transformation. Government attempts are hampered by:
‘… the reality … that South African society is still characterised by poverty and
illiteracy, and is bound by the differences of culture and language, and many persons
are either unaware of or poorly informed about their legal rights and what they should
do to enforce them, while access to professional [legal] advice and assistance is still
difficult for financial and geographical reasons.’1071
1069
The Presidency of the Republic of South Africa, Twenty Year Review, (2014) The Republic of South Africa.
1070
The Presidency of the Republic of South Africa (2014).(own emphasis added).
1071
The Presidency of the Republic of South Africa (2014).
180
These conditions have a serious impact on power relations within society. In the absence of legal
assistance, the law, by default, cements the legal isolation of the poor,1072 perpetuates discrimination,
and hence facilitates the disempowerment of marginalised communities. The disempowered react to
this power imbalance by resorting to self-help, with serious implications for peace and security in the
country. The Marikana tragedy, with its resultant loss of life reverberated across the world, 1073 while
the Civic Protest Barometer recorded 218 protests in 2014. Most of these protests (80%) were
characterised by violence on the part of the authorities or the participants.1074 The 2015/2016 academic
year was characterised by the ‘#Feesmustfall’ movement, with increasing levels of violence displayed
by protesters, police and private security.
Interestingly, the suggestion that these protests constitute an uprising of those who lack material goods
only, was not supported by empirical evidence.1075 The researchers found that 81 percent of protests
could not be explained by poverty alone and advised that other factors that may ignite these protests
needed to be considered. This ‘uprising of the poor’ is nevertheless real and redefining poverty as ‘lack
of intangible assets and social goods’, including the lack of access to justice, might assist in finding the
root causes of these protests.1076
Häefele identified a lack of security as a result of the failure on the part of law enforcement agencies to
protect communities, poor or no service delivery, and social and/or economic dissatisfaction as some
of the reasons for communities resorting to vigilantism in the Western Cape.1077 This is compounded
by a lack of knowledge of judicial procedures and a lack of trust in the State’s law enforcement agencies
and the judicial system.1078
1072
Note the definition of poor in Chapter 2.
1073
Kekana, M, 'Lonmin has lost R40m over Makiraka protests' of May 12, 2017, Eyewitness News, online:
<http://ewn.co.za/2017/05/12/lonmin-has-lost-r40m-over-marikana-protests>; Marinovich, G, 'The murder field of
Marikana. The cold murder fields of Marikana' of September 8, 2012, Daily Maverick, online:
<https://www.dailymaverick.co.za/article/2012-08-30-the-murder-fields-of-marikana-the-cold-murder-fields-of-
marikana#.WRo9t-uGPRZ>; Mkhize, J, “Police fire on Marikana miners, several dead”, (16August2012), available at:
Sowetan Live http://www.sowetanlive.co.za/news/2012/08/16/police-fire-on-marikana-miners-several-dead. (accessed
17 May 2017)
1074
Page 5.
1075
Powell, DM O’Donovan, M & De Visser, J (2015).
1076
Such as legal identity, good health, physical integrity, freedom from fear and violence, organisational capacity, the
ability to exert political influence and the ability to claim rights and live in respect and dignity.
Also see Department of Community Safety 2013 Department of Community Safety (2013); Swanepoel, M,
Duvenhage, A & Coetzee, T, 'Vigilantism: A theoretical perspective as applied to people’s courts in post-1994 South
Africa', (2011), 36(1), Journal for Contemporary History, pp. 114–133.
1077
Häefele, B (2006) p. 5–6.
1078
Häefele, B (2006).
181
The State, with the consent of its citizens, regulates their conduct through an extensive array of statutes,
regulations and policies. Failure on the part of the State to provide access to procedural justice, which
includes legal assistance and, in some instances, legal aid regardless of the nature of the proceedings,
constitutes a breach of the social contract. In addition, the Constitution demands adherence to the rule
of law. Everyone, but particularly vulnerable communities, who are left unprotected by the rule of law
in their daily interaction with the law have to be informed, advised and supported so that they can claim
the protection of the law. A failure to do so may result in citizens no longer considering themselves
bound by their undertaking to submit to the authority of the State. Ackerman J in S v Makwanyane
alluded to this 21 years ago by stating the following:
‘… in a constitutional state individuals agree (in principle at least) to abandon their

right to self-help in the protection of their rights only because the State, in a
constitutional state compact, assumes the obligation to protect these rights. If the State
fails to discharge this duty adequately, there is a danger that individuals might feel
justified in using self-help to protect their rights.’1079
In the United States of America, Chief Justice George, in his State of the Judiciary Speech, highlighted
the consequences of the disparities in society as follows: ‘If the motto, “and justice for all” becomes
“and justice for those who can afford it,” we threaten the very underpinnings of our social contract’.1080
This social contract is breached when its dispute resolution fora favour one citizen over another.
Confronted with such inequality, legal assistance, in general (including legal representation), and legal
aid, in particular, have become essential elements of a fair and efficient justice system, which was
founded in the rule of law. It is critical to restore and maintain the balance of power, not only
procedurally, but also substantively and as such ensuring both formal and substantive equality.
A commitment to and compliance with its obligation under the social contract is a fundamental
requirement for the continued existence of elected governments in modern constitutional democracies.
However, more than that,
‘a working legal and judicial system based on the rule of law – including accessible
courts that have the confidence of the population...[is not only a]… pre-condition for
1079
S v Makwanyane and Another (1995) p. 168.
1080
September 2001.
182
political stability [but] essential to the economic and social welfare of a society and its
members’.1081
A State that meets the justice needs of its citizens not only employs smart politics, but contributes to
the economic and social wellbeing of the nation. The social contract gives rise to two fundamental
rights, which are expressly guaranteed by the South African Constitution, namely the right to a fair
hearing1082 and the right to equality.1083 As the focus here is not on legal assistance in proceedings
before adjudicating mechanisms, only the right to equality is addressed below.
Legal assistance and the right to equality
Equality as an aspirational ideal finds expression in the substantive right to equality, which is contained
in section 9 of the Constitution. Section 9(1) declares ‘everyone equal before the law’ and confers ‘the
right to equal protection and benefit of the law’ on everyone.1084 The right to equality finds application,
among others, in the principle of ‘equality of arms’.1085 This principle, which can be applied to all
adjudicating mechanisms, is violated where an imbalance is so great that it threatens the fairness of the
proceedings. A narrow interpretation of this principle that focuses on legal representation in a judicial
or quasi-judicial forum only models the needs of the poor and marginalised on those who can afford to
pay for legal services. The fundamental flaw in this is highlighted by Gilles, who noted that the
economically disadvantaged are more vulnerable to exploitative practices in the marketplace and the
workplace.1086
This finds particular application in South Africa, as demonstrated by recent class action.1087 The
unequal distribution of wealth and poverty, with its distinctly racial bias, continues to characterize the
South African social landscape. Deeply ingrained disparities manifest in barriers, which result in
unequal access to justice for the majority of the country’s citizens. Smith states that ‘(b)arriers to access
to justice harms the poor and allows their oppressors to wield the legal system as a weapon against
1081
Bårdsen, A, Reflections on “Fair Trial” in Civil Proceedings According to Article 6 § 1 of the European
Convention on Human Rights, Scandanavian Studies in Law Series (2012) Stockholm, Sweden.
1082
Section 34.
1083
Section 9.
1084
1085
Legal Aid South Africa v Magidiwana and Others (2015); Magidiwana and Others v President of the Republic of
South Africa and Others (2013).
1086
Gilles, M, 'Class Warfare: The disappearance of low-income litigants from the civil pocket', (2016), 65(6), Emory
Law Journal, pp. 1531–1568.
1087
183
them’.1088 The poor and vulnerable have low bargaining capacity, poor credit history, limited options,
and find it difficult to process information.1089
However, this exploitation is not only confined to the market place, the workplace and non-State actors,
as it also extends, among others, to administrative action by the State. The poor and the vulnerable are
more likely to have their statutory rights violated. The University of Stellenbosch Legal Aid Clinic and
Others v Minister of Justice and Correctional Services and Others is a text book example. Cameron J
summarised the effect of the exploitation as follows:
'Primarily, the debtor’s section 34 right of access to court is breached by an execution

process not sanctioned by a court. Moreover, taking away the basic income that
indigent debtors rely on for subsistence, without court supervision, rubs right up against
the right to dignity (which underlies all the socio-economic rights of housing, food and
health care)’.1090
The institutionalisation of discrimination, the abuse of power and economic exploitation were endemic
in South African society under the apartheid regime. It was deeply embedded in the very fabric of
society. The assumption that this has changed because the law demands it and the conventional courts
will enforce it, is unwise. The applicants in this case suffered disadvantage from the outset owing to
the multiple barriers to access justice.1091 This is the daily struggle for dignity, equality and freedom
that all disempowered face when confronted with practices that militate against the values that
assumedly define contemporary South African society. These practices are perpetuated by State and
non-State actors alike.
The mandate to transform society expressed in the preamble of the Constitution requires all stakeholders
to weed out these practices and to weave the values of equality, dignity and freedom into the fabric of
contemporary South African society. Inasmuch as the courts have a crucial oversight role to play, these
institutions are removed from the daily lives of the disempowered and are not intended to be the
frontline hospital theatres for civil disputes. The transformation of society requires that all members of
South African society, and not only the State, should assume collective responsibility for the material
conditions of agency within society.
1088
Smith, R, Justice and the Poor, reprint 3 ed, (1972) Glen Ridge, USA: Patterson Smith p. 81.
1089
Gilles, M 2016 Gilles, M (2016).
1090
At para 15.
1091
These include lack of education, poverty and geographical location.
184
The Constitution imposes a positive obligation on the State, in particular, to promote the achievement
of equality,1092 and to take legislative and other measures to protect and advance persons and categories
of persons that are disadvantaged by discrimination. The Constitution further places a negative
obligation on the State to refrain from discrimination on listed and other grounds. Section 9(1), read
with section 9(2), confers a clear constitutional mandate upon the State to ensure that substantive
equality is achieved. However, extending mere formal equality to individuals without taking into
account the vast social and economic disparities between groups and individuals is a denial of
substantive equality. The State, therefore, fails to meet its constitutional obligation when it presents
LASA with a budget for legal aid that covers mainly criminal matters and secondary legal services in
certain civil matters. This constitutional obligation is not only imposed by section 9, but also by the
preamble, the founding provisions, the substantive right to human dignity1093 and freedom,1094 as well
as other waymarks that entrench the triumvirate of values that were identified in Chapter 3.
Although ‘equality of arms’ is used exclusively in relation to legal representation, there is clear evidence
that it extends beyond adjudicating fora.1095 The National Credit Regulator reported the lack of
education and knowledge as one of the challenges with alternative dispute resolution (ADR), which
made the engagement between the ADR agent and the consumer mainly one way, leading to
misunderstandings. Inequality of arms, in the commercial sphere, for example, presents at the
negotiation stage of the contract long before a dispute emerges and this inequality subsequently
manifests throughout the dispute resolution process, calling into question the fairness of the outcome
for the disadvantaged in respect of the contract and the dispute.1096 Sachs J in Barkhuizen v Napier
alluded to this.1097
It is unimaginable that the average consumer in the country would be able to afford a consultation with
a lawyer on every standard contract that he or she concludes. Add to this other barriers such as a lack
of education and it makes for a recipe pregnant with injustice. This inequality does not only manifest
1092
Section 9(2).
1093
Section 10 of the Constitution of South Africa,1996.
1094
Section 12 of the Constitution of South Africa, 1996.
1095
National Credit Regulator, Final Report: Investigation on the Effectiveness of the Alterntive Dispute Resolution in
South Africa, (2012) South Africa: Department of Trade and Industry.
University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others;
Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others (2016).;
1096
See the reference to ADR in the credit industry in Chapter 7.
1097
‘Standard form contracts are contracts that are drafted in advance by the supplier of goods or services and
presented to the consumer on a “take-it-or-leave-it” basis…Standard form contracts are thus ordinarily the product not
of negotiations but of the employment of legal teams by sellers of goods and services to serve their interests. In a
business context, such a standard form contract preserves the wisdom of the in-house lawyers about the best way in
which to handle recurrent problems of negotiation and performance… The process often resembles an imposition of
will rather than mutual consent to an agreement.’ At paras 136-138.
185
in the commercial sphere but in the private and public spheres as well. Froneman J, in a minority
judgement in Mdeyide, reiterated the dictum of Didcott J in Mohlomi1098 fourteen years later and
concluded the following:
‘[I]t is true that it is the commitment of our Constitution and public authorities to
alleviate and if possible eradicate that state of affairs, and that much has been done in
that regard since then. I believe, however, that it is unrealistic to think that for a
substantial portion of our population things have changed that much.’1099
The recent class action proves that not much has changed for the majority of citizens in the country.1100
Contrary, the suspicion settles that more than twenty years later, these conditions have been
substantially reduced, if not eradicated, which is indeed not so. This requires intervention. LASA is
statutorily obliged to provide legal assistance by rendering or making available a continuum of services
as reflected in Figure 1, regardless of the nature of the proceedings.1101 The objects of LASA are as
follows:
(a) render or make available legal aid and legal advice

(b) provide legal representation to persons at state expense; and
(c) provide education and information concerning legal rights and obligations, as
envisaged in the Constitution and this Act.1102
This has particular relevance for the community-based paralegal as this continuum of services spans
primary and secondary legal aid. The use of lawyers to provide primary legal aid is not only unrealistic
nor cost effective but also inappropriate as they are not trained to do so. LASA need not re-design their
structures or their services to accommodate comprehensive primary legal services to communities.
These services are already being offered, to a certain extent, by community-based paralegals in the
community-based advice offices with the aid of donor funding and volunteerism.1103 Incorporating
1098
Mohlomi v Minister of Defence (1996) p. 14.
‘[W]here poverty and illiteracy abound and differences of culture and language are pronounced, where such
conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have
been injured are either unaware of or poorly informed about their legal rights and what they should do in order to
enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for
financial or geographical reasons’.
1099
At para 115.
1100
1101
Page 42.
1102
Section 3 of the Legal Aid South Africa Act (2014).
1103
See Chapter 9.
186
these services into the legal aid fold, as is the current movement across the African continent, would
thus assist.1104 The State has a constitutional obligation to provide funding for these services and should
fund LASA accordingly.
6.7. CONCLUSION
Treaty law does not contain an express right to legal aid in civil matters. However, a body of ‘soft law’
has developed that requires legal aid where the interests of justice so require. The provision of legal
aid is intricately linked to the right to a fair hearing and the right of equality in the legal process. Failure
to provide legal aid where the interests of justice so require, therefore, compromises the fairness of a
hearing and violates the right of equality in the legal process.
The international and regional human rights monitoring bodies acknowledge that the provision of legal
aid places a burden on the state’s limited resources. They therefore recommend the use of paralegals
where parts of the population are poverty-stricken and the State’s resources are limited. The role of
paralegals on the African continent has now been codified in the Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa.
Reports submitted by South Africa to the HRC and the African Commission on Human and Peoples’
Rights detail the State’s efforts to provide legal aid to those within its borders. However, the State has
acknowledged its inability to provide legal aid to all those who qualify, especially in civil matters. The
reports are also vague on the use of paralegals as a means to close the justice gap for the country’s poor
and marginalised.
There is no express constitutional right to legal assistance in civil matters for persons who are eighteen
(18) years and older in South Africa. The right to legal assistance in civil matters for this category of
persons, including the right to legal representation and legal aid, is therefore derived from the social
contract between citizens and the State, international and regional human rights instruments and
jurisprudence, and the right to a fair hearing contained in section 34 of the Constitution of the Republic
of South Africa.
A lack of legal assistance in the face of inequality of arms renders the right to procedural justice
meaningless. Inequality of arms presents before a dispute reaches a court of law or another dispute
resolution forum and calls into question the focus on secondary legal services. The overwhelming need
1104
See Chapter 9.
187
in the country is for primary legal services and, in the presence of multiple barriers to access justice,
there is a need for legal assistance at this level, which is where the paralegal is most needed and
effective.
Nevertheless, the right to legal assistance, whether express or implied, is not unqualified and may be
limited in accordance with section 36 of the Constitution. LASA mainly provides legal assistance in
criminal matters for persons of all ages and to minors who are involved in civil matters. It places a
plethora of limitations on the right to legal aid in civil matters, most of which are not requirements in
criminal matters. The Legal Aid Guide states that the provision of legal aid is subject to the State’s
limited resources. Thus, according to the guide, should the application for legal aid in a civil matter
survive the layers of restrictions, legal aid may nevertheless be declined as a result.
The reliance on the limited resources of the State as justification for the limitation of the right to legal
aid is called into question by comparative studies conducted in other jurisdictions. These studies have
shown that investing in legal aid could be a cost saving exercise. Furthermore the extremely skewed
allocation of legal aid resources in favour of criminal matters invites a section 36 scrutiny into the
limitation of the right of access to procedural justice under section 34.
LASA is authorised by statute to employ paralegals, who, once adequately trained, are more cost
effective, as they focus on areas where the need is greatest, which is primary legal services; hence there
is an economic rationale for providing legal and paralegal assistance. Greater recognition of traditional
and informal non-state justice systems, especially in informal settlements and rural areas, is also
required.
In contemporary, highly regulated South African society, it is imperative for every citizen to have a
basic understanding of the law, and to obey it or rely on it for protection. However, to date, knowledge
of the law has been considered to be the exclusive domain of the narrow legal profession and those in
the justice system. The lack of knowledge of the law deprives it of its deterrent effects, leaves citizens
without redress and undermines the country’s new democratic order. In the absence of meaningful
access to adjudicating mechanisms, the impression settles in the minds of the marginalised and the poor
that the law is the problem, with serious consequences for peace and stability in the country.
The State has a constitutional obligation to correct this near monopoly on legal knowledge and legal
services by embarking on a purposeful process of legal empowerment to ensure access to justice. This
constitutional obligation is questionably limited by a lack of resources. In the face of this lack of
resources, alternative and creative means should be sought to ensure access for vulnerable communities.
A lawyer-driven litigation model is simply not a sustainable mechanism for providing legal assistance
188
to those in need, even in South Africa. The paralegal, as a tool to ensure legal empowerment, can
complement the role of the narrow legal profession and there is precedent on the African continent,
including South Africa. Having examined the right to legal assistance in civil matters in South Africa,
Chapter 7 will proceed to briefly examine the adjudicating mechanisms provided by the State.
189
Part IV
The Institutions that Support Access to Justice in South Africa
190
CHAPTER 7
COURTS AND OTHER DISPUTE RESOLUTION FORA
7.1. INTRODUCTION
Chapter 6 examined the right of access to legal assistance in civil matters. This chapter examines, in
brief, the extent to which the legal framework of the courts and other dispute resolution fora create
scope for paralegal representation. The brevity of this part of the investigation is as a result of the fact
that most of these institutions focus on secondary legal services and the involvement of practitioners of
the law would mainly centre on legal representation by an advocate and attorney.
The absence of an institutional framework, in particular judicial organs, to give effect to the normative
human rights and other national frameworks of access to justice would render that normative framework
meaningless. The Constitution makes provision for an institutional framework of access to procedural
justice that spans a network of courts and tribunals, State institutions supporting constitutional
democracy, alternative dispute resolution fora and commissions of enquiry. The State therefore has an
obligation to create this institutional framework and provide the necessary human resources and
infrastructure to the extent allowed by its resources.
The focus in this study is on Chapters 8 and 9 of the Constitution. Chapter 8 deals with the courts and
the administration of justice and Chapter 9 with state institutions that support democracy. The purpose
of this enquiry is to determine the scope for paralegal representation in these fora. The range of
institutions that support access to justice represent the transformative aspects of our constitutional
democracy and will be discussed below.
7.2. COURTS
The judicial authority in South Africa is vested in the courts, which are independent and subject only to
the Constitution and the law.1105 No person or organ of state may interfere with the functioning of the
courts, and an order or decision of a court binds all organs of state and people to whom it applies. The
Constitution imposes a positive duty on these organs of state to support and protect the ‘independence,
impartiality, dignity, accessibility and effectiveness of the courts’.1106 It also declares the Chief Justice
the head of the judiciary, tasked with the responsibility of establishing and monitoring the norms and
1105
Sections 165(1)-(3) and (5).
1106
Section 165(4).
191
standards that govern the judicial functions of all courts.1107 This signalled a shift away from
parliamentary sovereignty which was the dispensation under the apartheid regime, to a constitutional
democracy.
Chapter 8 provides for a hierarchical courts structure with the Constitutional Court at the apex.1108 The
Supreme Court of Appeal ranks next in the hierarchical order,1109 followed by the high courts1110 and
magistrates courts.1111 The Constitution also makes provision for any other court established or
recognised in terms of an Act of Parliament.1112 Any court so established includes courts of a status
similar to that of a high court or magistrates court.
The government has discharged its constitutional obligation to provide the necessary adjudicating
mechanisms1113 by establishing an extensive system of conventional judicial organs of state.1114 A
number of special courts have also been established. These are income tax courts, the Labour Court,
the Labour Appeal Court, the Land Claims Court, the Competitions Appeal Court, the Electoral Court,
divorce courts, small claims courts, ‘military courts’ and equality courts. Section 166(e), as amended,
specifically opened the door for the expansion of the judicial structure as our constitutional democracy
evolves.1115 This has particular significance for a legal empowerment agenda as the focus to date has
been predominantly on the conventional structures that support the rule of law.1116
The Rules of the Constitutional Court precludes representation by any party who is not entitled to appear
in the high court unless the Chief Justice directs otherwise.1117 The Constitutional Court is the most
significant institutional transformative development to date and is the custodian of the transformation
agenda in South Africa. It has, for the most part, been living up to that mandate since its
establishment.1118 However, the likelihood of the Chief Justice directing that a party be represented by
1107
Section 165(6) [inserted by the Constitution Seventeenth Amendment Act Constitution Seventeenth Amendment
Act (2012).].
1108
Section 166(a).
1109
Section 166(b).
1110
Section 166(c).
1111
Section 166(d).
1112
Section 166(e).
1113
As per the record of the “The Department of Justice and Correctional Services”, available at:
http://www.justice.gov.za/. (accessed on 15 April 2017)
1114
A Constitutional Court and Supreme Court of Appeal, 13 high courts, six specialist high courts, 714 magistrates
courts, 345 small claims courts and 13 community courts.
1115
Section 166. The courts are- …
(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar
to either the High Court of South Africa or the Magistrates’ Courts.
1116
See discussion on the Traditional Courts Bill in Chapter 5
1117
Republic of South Africa, 'GNR 1675 (GG 25643)' of October 31, 2003, Government Gazette, 2–54. (Rule 6)
1118
See the reference to Constitutional Court rulings throughout this dissertation.
192
a paralegal in the Constitutional Court, even if permitted by law, is for all intents and purposes zero due
to the complexity of the proceedings and the subject matter.
The legal framework of the conventional courts1119 makes no provision for legal representation other
than representation by an advocate, attorney or ‘articled clerk’ (candidate attorney). The Rules
Regulating the Conduct of the Proceedings of the Supreme Court of Appeal refer to representation by
a legal practitioner, who is an advocate or attorney.1120 The Uniform Rules Regulating the Conduct of
the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa also
only makes provision for representation by an advocate or attorney.1121 The definitions clause of the
Magistrates’ Court Act defines a practitioner as ‘…an advocate, an attorney, an articled clerk such as is
referred to in section 21 or an agent such as is referred to in section 22 …’. Section 22 does not define
an agent. It is therefore unclear who would qualify to represent a party as an agent. This Act therefore
only makes provision for representation by a legal practitioner and paralegal representation does not
feature.
The special courts that have been established are modelled, for the most part, on the conventional courts,
although a number of them allow for representation by practitioners other than advocates or attorneys.
The Labour Relations Act1122 does not expressly provide for representation by paralegals in the Labour
Court and the Labour Appeal Court.1123 It defines a ‘legal practitioner’ as ‘any person admitted to
practise as an advocate or an attorney in the Republic’.1124 However, a paralegal may indirectly qualify
under sections 161(b) to (e). Furthermore, although the Small Claims Court Rules does not make
provision for any form of legal representation, paralegals (legal assistants) and clerks at the court assist
litigants free of charge but do not represent the litigants.
1119
Constitutional Court, Supreme Court of Appeal, high courts and magistrates courts.
1120
'Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa (R. 1523)' of
November 27, 1998.
1121
Rule 16.
1122
Labour Relations Act, 66 of 1995.
1123
Section 161. In any proceedings before the Labour Court, a party to the proceedings may appear in person or be
represented only by –
(a) a legal practitioner;
(b) a director or employee of the party;
(c) any member, office-bearer or official of that party's registered trade union or registered employers'
organisation;
(d) a designated agent or official of a council; or
(e) an official of the Department of Labour.
1124
Section 213.
193
Section 20 of PEPUDA1125 is also couched in wide enough terms to include paralegal representation in
the Equality Court.1126 This court has simplified its proceedings and provides assistance (in the form of
information and advice on the proceedings) to litigants. However, the results of the Access to Justice
and Promotion of Constitutional Rights Baseline Survey1127 show that awareness of equality courts is
extremely low as only 3% of respondents were aware of their existence and function. This occurred in
spite of the central role that these courts play in the promotion of equality and the prohibition of unfair
discrimination, hate speech and harassment.1128
In the absence of comprehensive primary legal services, the courts become the frontline hospital theatres
for civil disputes for those who can afford it and those who meet the stringent requirements set by
LASA. The Department of Justice and Correctional Services reports on an annual basis on the
administration of justice which includes the courts. The Department claims that it is winning the battle
against the backlog in the courts.1129 However, given the fact that the majority of poor civil litigants do
not have access to these courts, the Department may be winning this battle but it is losing the war against
the lack of access to procedural justice for civil litigants. The State therefore needs to redirect its efforts
to primary legal services with the focus on prevention and early intervention before the dispute requires
adjudication in a court of law. This is where the paralegal has proven itself pivotal in the international
arena and where the interventions of the Department of Justice and Correctional Services fall short.
For the most part, the proceedings in some of the aforementioned courts are complex and even
representation by a newly admitted attorney or advocate would constitute a risk to the client.
Representation by paralegals, regardless of their training and experience, would and should therefore
not be a consideration. Nevertheless, if parties to the proceedings in these conventional courts are
unable to afford legal representation, regardless of the nature of the proceedings, there are few options
available to them. They may, for example, apply for legal aid.1130 However, if legal aid is not provided,
they either have to abandon their claim or defense, represent themselves or appeal for pro bono
assistance from a member of the legal profession. A lack of legal assistance in these conventional courts
constitutes a miscarriage of justice, regardless of the nature of the proceedings. Moreover, there are
proceedings in the lower courts in civil matters for which paralegal representation could be appropriate,
1125
Promotion of Equality and Prevention of Unfair Discrimination Act (2000).
1126
Section 29(1)(b) allows ‘any person acting on behalf of another who cannot act in their own interest’ to institute
proceedings in the Equality Court.
1127
1128
Kimmie, Z & O’Sullivan, G (2015) p. 19..
1129
Department of Justice and Constitutional Development, Annual Report 2015/2016, (2016) ; Department of Justice
and Constitutional Development, Annual Report 2014/2015, (2015) Pretoria, South Africa.
1130
This would mean that the prospective civil litigant must appeal for, among others, pro-bono assistance from a
member of the legal profession or legal aid.
194
for example, an application for the rescission of an administrative order that is unopposed. In addition
to the courts, the State has also established a number of tribunals.
7.3. TRIBUNALS
A range of specialist tribunals have been established by statute. These include the Competition Tribunal
of South Africa,1131 the Rental Housing Tribunal,1132 the National Consumer Tribunal,1133 the
Companies Tribunal,1134 the Water Tribunal1135 and the Commission for Conciliation, Mediation and
Arbitration (CCMA).1136 The Companies Tribunal is relatively new and has not yet published rules
relating to its proceedings. The CCMA is arguably the leading tribunal in respect of the volume of
referrals but the matter of representation in this forum is not without controversy. The conflict revolves
around Rule 25 of the Rules for the Conduct of Proceedings before the CCMA. This rule excludes legal
practitioners (advocates and attorneys) from conciliation proceedings and allows legal representation
in arbitration proceedings under limited circumstances. A High Court challenge to this rule decided in
favour of the Law Society of the Northern Provinces1137 was overturned on appeal and this CCMA rule
was affirmed by the Supreme Court of Appeal.1138 Rule 25 was subsequently amended to the extent
that it precludes any person other than a legal practitioner from charging a fee for representing a party
to the proceedings.1139 This effectively rules out paralegal representation as the concept legal
practitioner denotes an advocate or an attorney. All other tribunals make provision for representation
by persons other than attorneys and advocates, which includes paralegals.1140 These tribunals therefore,
are more accessible than the courts.
1131
Established in terms of section 26 of the Competition Act, 89 of 1998.
1132
Established in terms of section 7 of the Rental Housing Act, 50 of 1999.
1133
Republic of South Africa, 'GN 769 (GG 30225)' of August 28, 2007, Government Gazette, 3–90.
1134
Established in terms of sections 193 and 195 of the Companies Act, 71 of 2008.
1135
Established in terms of section 146(1) of the National Water Act, 36 of 1998.
1136
Established in terms section 112 Part A of the Labour Relations Act Labour Relations Act (1995).
1137
Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces
(2013).
1138
Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces
(2013).
1139
Amended Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and
Arbitration (CCMA) were promulgated on 17 March 2015 and will come into effect on 1 April 2015. GG 38527.
1140
Rule 33 of the Rules for the Conduct of Matters before the National Consumer Tribunal.
Rule 44 of the Procedural Regulations, 2008 pursuant to the Rental Housing Act 50 of 1999.
Rule 8 of the Water Tribunal Rules (Republic of South Africa, 'GN 926 (GG 28060)' Government Gazette (2005) 4.)
Rule 44 of the Rules for the Conduct of Proceedings before the Competition Tribunal.
195
7.4. STATE INSTITUTIONS SUPPORTING DEMOCRACY
Chapter 9 of the Constitution of the Republic of South Africa makes provision for various independent
and impartial State institutions tasked with strengthening the country’s constitutional democracy. 1141
The Constitution endeavours to ensure the independence of these institutions by rendering them subject
only to the Constitution itself and the law1142 and making them accountable to the National Assembly
where they have to report at least on an annual basis.1143 Furthermore, organs of state have a positive
constitutional obligation to protect the independence, impartiality, dignity and effectiveness of these
institutions1144 and no one, whether State or citizen, may interfere with their functioning.1145
This Chapter expressly calls into life the office of the Public Protector,1146 South African Human Rights
Commission,1147 Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities,1148 Commission for Gender Equality,1149 Auditor-General1150 and Electoral
Commission.1151 It provides specific guidelines for the functions of each and requires legislation to be
enacted to regulate these functions.1152
The Constitution confers specific authority on the Public Protector to investigate and report on improper
conduct on the part of the State and its organs with the exclusion of court decisions and to take remedial
action.1153 The Public Protector complied with its constitutional mandate by ‘acting as a buffer between
the state and disgruntled citizens while seeking to improve good governance and service delivery in the
public sector’.1154 The number of cases dealt with is testimony to the efforts of this office and the nature
of these cases reveals a genuine attempt to be accessible to the poor and marginalised.1155 These cases
1141
Sections 181 – 194.
1142
Section 181(2).
1143
Section 181(5).
1144
Section 181(3).
1145
Section 181(4).
1146
Section 181(1)(a).
1147
Section 181(1)(b).
1148
Section 181(1)(c).
1149
Section 181(1)(d).
1150
Section 181(1)(e).
1151
Section 181(1)(f).
1152
Section 182-190.
1153
Section 182(1)(a)-(c).
1154
Public Protector South Africa, Annual Report 2009/2010, (2010) Cape Town, South Africa p. 11.
1155
Public Protector South Africa, Annual Report 2010/2011, (2011) Cape Town, South Africa p. 3.
‘We continued to give priority to bread-and-butter matters, bringing relief to many destitute persons whose lives had
come to a standstill due to service failure relating to identity documents, social grants, government employee
pensions, Unemployment Insurance Fund and Workers’ Compensation matters, among others. Our strategic plan
requires that we resolve bread-and-butter matters within a day to three months’.
196
show a clear overlap between the work of the Public Protector and that of the Community Advice
Offices (CAOs).1156
The 2009/2010 Annual Report of the Public Protector shows that the most complaints received involved
the Department of Justice and Constitutional Development1157 and in 2013/14 the Department of Justice
and Correctional Services, as it is now called, was among the top ten (number six) offenders.1158 This
is disconcerting. If the State department mandated to oversee the administration of justice is one of the
leading offenders in respect of compliance, the need for the legal empowerment of citizens and the
accessibility to and efficacy of the Public Protector become imperative. The Public Protector
acknowledged that its constitutional mandate is hampered by resource constraints as it is not possible
to be accessible to all who require its services.1159 In view of this and bearing in mind that its case load
has been increasing year on year, resulting in an increase in cases being carried over,1160 it is imperative
that this office considers collaboration with other institutions such as CAOs. The paralegals that staff
these CAOs may perform an important screening function and apply ‘first aid’ to the legal problem. In
so doing, they may assist in reducing the workload of the Public Protector’s office.
The Constitution further empowers the Human Rights Commission to investigate and report on the
observance of human rights, secure appropriate redress for human rights violations, conduct research
and educate citizens on human rights.1161 It also mandates the Commission for the Promotion and
Protection of the Rights of Cultural Religious and Linguistic Communities to monitor, investigate,
research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and
linguistic communities.1162 The Commission for Gender equality is empowered to do likewise in
respect of matters concerning gender equality.1163 The fundamental powers of the Auditor-General1164
and the basic functions of the Electoral Commission are also prescribed by the Constitution. All of the
above institutions report on a regular basis on their activities and successes and in some instances
independent surveys are conducted.
1156
See the discussion on the community-based paralegal in Chapter 9.
1157
Public Protector South Africa (2010) p. 41.
1158
Public Protector South Africa, Annual Report 2013/2014, (2014) Cape Town, South Africa.
1159
Public Protector South Africa (2010) p. 7.
1160
Public Protector South Africa (2010).
1161
Section 184(2)(a)-(d).
1162
Section 185(2).
1163
Section 187(2).
1164
Section 188(1) and (2).
197
The extent to which these institutions contributed to increased access to justice for vulnerable
communities was called into question by the results of the Access to Justice and Promotion of
Constitutional Rights Baseline Survey.1165 The survey revealed that there is a very low awareness of
these Chapter 9 institutions as only 10% of respondents knew them and only 1% could correctly identify
them.1166 The survey further found low levels of awareness of the Constitution, the Bill of Rights and
human rights legislation and this was strongly linked to certain barriers to access, namely, low levels of
education, socio-economic status and lack of access to information.1167 Less than 10 percent of the
respondents have read the Constitution or had it read to them. The dictum of Froneman J in Mdeyide
captures the consequences of this state of affairs:
‘Knowledge of the facts that give rise to justiciable claim is a necessary pre-
condition for the exercise of the right of access. Without that knowledge the right
of access means nothing; it remains abstract and illusory.’1168
In addition, public ignorance of the law increases the risk of functional lawlessness characterised by
violence and arbitrariness when citizens take matters in their own hands.
The respondents nevertheless showed a fairly high level of knowledge of some of the substantive rights
contained in the Bill of Rights such as the right to join a trade union, the right to basic health care, food,
water and social security, the right to basic education, including basic adult education and their rights
in respect of evictions. The importance of this awareness can never be underestimated and is by and
large as a direct result of the socio-legal function performed by the community-based paralegals in the
field.
However, this simply serves to amplify support for the conclusion that the efforts to deliver access to
justice to the deeply poor are still mainly on welfare and not on legal empowerment, thus not enabling
these individuals and communities to become economic actors. This, in the author’s view, reduces their
option-freedom and curtails their agency-freedom.
1165
1166
Page 19.
1167
Page 12.
1168
At para 100.
198
7.5. COMMISSIONS OF INQUIRY
It is a well-established practice in South Africa1169 and a constitutional prerogative of the President of

the Republic1170 and Premiers of Provinces1171 to establish commissions of inquiry to investigate matters
that are of public and national interest. This practice has led to South Africa being labelled as, arguably,
the Commission of Inquiry capital of the world1172 and is caustically referred to as ‘Commissions of
Omissions.1173 The number of commissions that have been established in South Africa has not been
investigated but those that drew public attention are numerous.1174
The Commissions Act has as its purpose the appointment of a commission to investigate matters of
public concern. It provides for the terms of reference of a commission to be published in the
Government Gazette.1175 It also makes express provision for the proceedings of the commission to be
conducted in public.1176
Dissatisfaction with commissions has led to numerous challenges in the courts in the past, at present
and will certainly in the future.1177 Whether these commissions are effective in delivering greater access
to justice to vulnerable communities or whether they are, like sporting events, merely the panacea of
the masses will remain a matter of public debate. Nevertheless, at a very basic level, their purpose is to
investigate matters of public and national interest, whether the overwhelming majority of the public
have an interest in it or not. Paralegal representation, although not outlawed, does not feature in these
commissions in so far as it could be ascertained.
1169
This is an aspect of English law dating back to the 12th century and its enabling legislation is the Commissions
Act, 8 of 1947.
1170
Section 84(2)(f).
1171
Section 127(2)(e).
1172
McKinley, DT, “Commissions of Inquiry or Omission?”, (2015), available at: The South African Civil Society
Information Service http://sacsis.org.za/site/article/2347. (accessed 7 February 2016)
1173
McKinley, DT (2015).
1174
Examples include the Commission of Inquiry into Higher Education and Training, 2016, Cassim Inquiry, 2015,
‘Marikana’ Commission, 2012, Seriti Commission, 2011, Donen Commission, 2011, Ginwala Enquiry, 2008,
Khampepe Commission, 2008, Hefer Commission, 2004, Commission of Inquiry into the Rapid Devaluation of the
External Value of the Rand, Commission on the Ellis Park Disaster, 2001 and Nel Commission, 2001, the White
Commission, 1995 and the Truth and Reconciliation Commission, 1995.
1175
Section 1.
1176
Section 4.
1177
Mbebe and others v Chairman, White Commission and Others Mbebe and others v Chairman, White Commission
and Others (2000).
Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 (TKH); Azanian Peoples Organisation
(AZAPO) AND Others v The President of the Republic of South Africa Azanian Peoples Organisation (AZAPO)
AND Others v The President of the Republic of South Africa (1996).
199
The cost of litigation also resulted in alternative dispute resolution increasingly making its way into the
dispute resolution arena as a precursor and/or an alternative to litigation. This development will form
the focus of discussion below.
7.6. ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS
ADR has made particular inroads into three key areas of the law, namely, family law, labour law 1178
and commercial law. The Constitution itself also provides expressly for mediation in the event of an
impasse between the National Assembly and the National Council of Provinces when legislation is to
be passed.1179
A number of statutes make provision for compulsory ADR. The Commission on Gender Equality is by
law obliged to resolve gender-related issues or complaints through the process of mediation.1180
Professional boards in the health sector, likewise, are tasked with mediating minor transgressions by
health professionals.1181 In addition, a Community Forestry Agreement is by law required to provide
for dispute resolution through informal mediation or arbitration.1182 Furthermore, parties to existing
government transport contracts that cannot reach consensus on amendments or inclusions to the
contract, are obliged to refer the matter for mediation.1183 The pro forma founding agreements for
transport authorities are also by law required to refer related disputes to mediation1184 and mediation is
specifically provided for in respect of the pension-related disputes of postal employees.1185
A range of statutes also provide for mediation as a voluntary ADR tool. These include ‘victim offender
mediation’,1186 mediation voluntarily sought by a consumer,1187 co-operation between civil society and
the National Consumer Commission1188 and mediation services rendered by a provincial consumer
protection authority.1189 It further includes referrals to mediation by experts, appointed officials and a
tribunal established for the purpose of dealing with the development of land.1190 The National Energy
1178
The CCMA has been addressed in the previous paragraph.
1179
Section 76(1)(d).
1180
Section 11(1)(e) of the Commission on Gender Equality Act, 39 of 1996.
1181
Section 42 of the Health Professions Act, 56 of 1974.
1182
The National Forests Act, 84 of 1998.
1183
Section 46(2) of the National Land Transport Act, 5 of 2009.
1184
Sections 6 and 7 of the National Land Transport Regulations on Contracting for Public Transport Services, 2009
(Republic of South Africa, 'GNR 877 (GG 32535)' of August 31, 2009, Government Gazette.)
1185
Post Office Act, 44 of 1958.
1186
Child Justice Act, 75 of 2008.
1187
Section 70 of the Consumer Protection Act, 68 of 2008.
1188
Section 85 of the Consumer Protection Act (2008).
1189
Section s77 and 84(b) of the Consumer Protection Act (2008).
1190
Section 4(2)(c)(i) and 16(b)(iii) of the Development Facilitation Act, 67 of 1995.
200
Regulator, or a person so appointed, is also enjoined to act as a mediator to settle related disputes. 1191
Disputes related to security of tenure1192 and those involving financial services providers,1193 schemes
established by financial institutions,1194 water affairs,1195 infringements of language rights, policy,
practice and legislation,1196 ‘petroleum-related matters’,1197 evictions,1198 unfair discrimination,1199
tenant and landlord1200 and civil matters.1201 The law also confers on the Public Protector discretionary
powers to settle disputes or rectify acts or omissions through mediation, conciliation or negotiation.1202
The extent of the research conducted in South Africa prior to the establishment and implementation of
these adjudicating mechanisms has not been investigated in this study. This study is therefore unable
to state with a degree certainty whether the beneficiaries, especially the poor and marginalised, have
been consulted in the process or not. However, if the purpose of these mechanisms is to increase access
to justice, it raises the question, ‘Access for whom’? Given the fact that the majority of the people in
the country are poor and often function outside the formal legal system, the extent to which they benefit
from these measures is currently unclear. Many of the barriers that prevent access to the conventional
courts also manifest in the ADR fora. The extent to which these ADR measures address the day to day
and primary legal needs of the poor and overcome barriers to access, is therefore uncertain. This
requires research to be conducted.
The final report on the investigation into the effectiveness of the ADR market in the credit industry in
South Africa which was commissioned by the National Credit Regulator1203 indicates that the legal
needs of the cohort varied by social status1204 with the profile of credit users heavily skewed towards
the black population.1205 This holds particular significance for the type of intervention and assistance
that is required. The consequences of a dispute, therefore, that remains unresolved or an outcome that
does not favour the credit user manifests differently for high income than low income earners. High
1191
Section 42(1) and (2) of the Electricity Regulation Act, 4 of 2006.
1192
Section 21(1) and (4) of the Extension of Security of Tenure Act, of 1997.
1193
Section 5(a) of the Financial Advisory and Intermediary Services Act, 37 of 2002.
1194
Section 1 of the Financial Services Ombud Schemes Act, 37 of 2004.
1195
Section 150(1)-(4) and 7 of the National Water Act (1998).
1196
Section 2 and 11(5) of the Pan South African Language Board Act, 59 of 1995.
1197
Section 4(d), 30(1) and 2 of the Petroleum Pipelines Act, 60 of 2003.
1198
Section 7(1), (2) and (5) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of
1998.
1199
Section 21(4)(b) of the Promotion of Equality and Prevention of Unfair Discrimination Act (2000).
1200
Section 13(2)(c) of the Rental Housing Act (1999).
1201
Section 2(1), 3(1) and (2) of the Short Process Courts and Mediation in Certain Civil Cases Act, 103 of 1991.
1202
Section 6(4)(b)(i) of the Public Protector Act, 23 of 1994.
1203
National Credit Regulator (2012).
1204
Disputes referred by high income earners relate to mortgage and secured loans, whereas those referred by low
income earners relate to personal unsecured loans and credit facilities.
1205
The overwhelming majority (94%) of the credit users of the cohort were black.
201
income earners may suffer a mere lowering of their social status, whereas a middle to low income earner
may suffer a severe infringement of their right to a minimum standard of living.
The results of the survey also indicated that the lack of commitment on the part of the consumer to the
duration of the process and drop-out by consumers were also prevalent. The study found service
providers inaccessible due to their geographical location and the manner of delivery of service presented
barriers to access as walk-ins are discouraged. Institutional barriers to access to justice thus present
itself even in these adjudicating mechanisms that are supposed to provide greater access.
The survey found that consumers had a fundamental problem with the role of the ADR agents as the
expectation was that the agent will ‘take over their case’ and ‘take their side’. This begs the question
for the consumer, ‘Who is in my corner?’ The importance of some form of assistance and
representation, even in ADR fora, is clear from these results. Given the fact that such assistance, in
many instances, hardly warrants the attention of an attorney, paralegal assistance becomes a more viable
option.
De Waal, Currie and Erasmus highlighted the fact that the legislature proceeded to increase the
accessibility of the courts and other dispute resolution fora by providing the statutory framework for
it.1206 The State has also made attempts to comply with its positive obligation to establish the
infrastructure such as court buildings, offices, libraries and human resources.1207
However, some of these measures fall short of ensuring access in one fundamental way. There is the
underlying presumption that an unrepresented party regardless of circumstances will be able to navigate
these proceedings without challenge. This assumption fails to take into consideration the multiple
vulnerabilities of its intended beneficiaries. The fact that access is free suggests that the lack of material
goods as a barrier is the main consideration. Given the multiple barriers to access to justice and the
extent of the vulnerability of many of the parties to these proceedings, such a presumption is indeed
highly detrimental to providing access to justice. Those with or without the material means to access
these adjudicating mechanisms might nevertheless suffer other barriers to access.
Access to these mechanisms and the fairness of these proceedings thus may require legal assistance
which in some instances, has to take the form of legal representation at the expense of the State. The
1206
De Waal, J , Currie, I & Erasmus, G (2013) p. 715.
1207
The Presidency of the Republic of South Africa (2014).
202
right to legal assistance by a legal or paralegal practitioner may thus be a pre-condition for the fairness
of the proceedings in the aforementioned adjudicating mechanisms, if the interest of justice so require.
In this regard the author concurs with the sentiments expressed by Didcott J, 22 years ago in S v Khanyile
and Another1208. The judge quoted with approval from Acta Juridica when he concluded that the
guidance the magistrate provided to the unrepresented accused was no substitute for the professional
help they missed:
‘“Of all false and foolish dicta, the most trite and the most absurd is that which
asserts that the Judge is counsel for the prisoner…. The Judge cannot be counsel for
the prisoner, ought not to be counsel for the prisoner, never is counsel for the
prisoner,”’1209
This might have been applied to criminal proceedings but holds equally true for civil proceedings.
Many civil proceedings are, by their very nature adversarial. The adjudicating body, whether a superior
court, the CCMA, a lower court or tribunal must nevertheless comply with the fundamentals of a fair
hearing as discussed in the preceding chapters. That in essence means that whether the proceedings are
inquisitorial or accusatorial in nature, both the adjudicating body and the presiding officer must adhere
to the principles of fairness, impartiality and independence as per section 34 of the Constitution. This
does not mean that these rights cannot be limited in terms of section 36. The fact of the matter is that
the denial of legal assistance, including legal or paralegal representation where required, has a bearing
on the fairness, not only of the proceedings but also the outcome. The institution charged with providing
legal assistance at the expense of the State is Legal Aid South Africa (LASA) and has been doing so
sparingly in civil matters.1210 To date, the justice gap left by the inability of the State to provide
comprehensive legal assistance in civil matters has barely been addressed by the uncoordinated efforts
of a patchwork of non-government service providers. One of these service providers is the CAOs whose
community-based paralegals have rendered a free socio-legal service to communities since before 1994.
7.7. CONCLUSION
The South African institutional framework that supports access to justice spans a network of courts,
tribunals, commissions, state institutions supporting constitutional democracy and alternative dispute
resolution mechanisms. These institutions allow for paralegal representation to varying degrees.
1208
S v Khanyile and Another 1988 (3) SA 795 (N), para 798.
1209
At para 798.
1210
See Chapter 6.
203
The nature of the disputes and the proceedings in conventional courts, for the most part, are complex.
Paralegal representation would therefore not be appropriate and the rules of the conventional courts
thus do not allow for paralegal representation in these courts. This does not mean that there are no
proceedings in the lower courts for which paralegal representation might be appropriate. The absence
of any legal assistance presents litigants with limited options. They either have to abandon their claim
or defense altogether or represent themselves. This amounts to a denial of the right of access to
procedural justice.
There are a number of specialist tribunals and courts, such as the equality courts, that allow
representation by persons other than an attorney or an advocate, which includes a paralegal. In spite of
this, the Access to Justice and Promotion of Constitutional Rights Baseline Survey reported low
awareness of the equality courts. This calls into question the reliance on these courts as primary
adjudicating mechanisms. Moreover, the amendment of Rule 25 of the Rules for the Conduct of
Proceedings before the CCMA effectively precludes paralegals from charging a fee when representing
a party to the proceedings. The constitutionality of this rule will still be tested in the Constitutional
Court. The Department of Justice and Correctional Services claims that it is winning the battle against
the backlog in the courts. However, given the multiple barriers to access to these courts that confront
the poor and the marginalised, the Department might very well be losing the war against the lack of
access to procedural justice in civil matters.
Other State institutions supporting democracy have been established to strengthen the democratic order.
Yet, preliminary research conducted suggests that there is a low awareness of these institutions among
citizens which increases the risk of functional lawlessness. Collaboration between these institutions
and CAOs staffed by community-based paralegals may assist in bridging the gap between the law and
the people.
Insufficient research has been conducted into the effectiveness of ADR mechanisms but results from
the credit industry suggest that the barriers to access prevail even in these fora. There is the expectation
on the part of consumers that these adjudicating mechanisms should represent them, which highlights
the need for legal assistance. In the presence of the various barriers to access to justice, the right to
legal assistance has become a pre-condition for the fairness of proceedings not only in courts and
tribunals but also other adjudicating fora. LASA discharges the obligation to provide legal assistance
at the expense of the State on its behalf. The inability of the State to provide legal aid in civil matters
to all those who qualify, is a matter of international record.
There are key agents who provide this legal assistance. To date, the focus has mainly been on the
narrow legal profession and the paralegal profession has received very little attention. Having identified
204
the scope for and shortcomings with regards to paralegal representation in the aforementioned
institutions, the focus will be on the legal and the paralegal profession and its contribution to and
potential for enhancing access to justice for vulnerable communities will therefore be examined next.
205
PART V
The Human Resources that Support Access to Justice in South Africa
206
CHAPTER 8
THE LEGAL PROFESSION IN SOUTH AFRICA
8.1. INTRODUCTION
In the preceding chapters the values, substantive legal framework and institutions that support access
to justice in civil matters in South Africa were examined. This chapter focuses on the human resources
that support access to justice, in particular the legal profession. Justice Vision 2000 considered the
transformation of the legal profession to be an indispensable part of the transformation of the
administration of justice. The purpose of this transformation was to grant all persons equal and fair
access to justice and to protect the dignity, rights and security of every person. The paralegal practitioner
featured prominently in Justice Vision 2000 as a role player in making justice more accessible to the
poor and the marginalised in the country.
This chapter commences with an examination of what constitutes the legal profession and its
transformation and reviews the rationale for the transformation. It tracks the legal reforms in the legal
profession and evaluates the extent to which these reforms facilitate procedural justice in civil matters
and safeguard the dignity, rights and security of the poor and marginalised in the country. This chapter
further examines the scope that the legal reforms provide for the paralegal practitioner to enhance access
to procedural justice in civil matters for vulnerable communities.
8.2. THE LEGAL PROFESSION DEFINED
The generic distinguishing features of a profession include advice and service to the community in a
specialised field of training, a governing body that represents, controls, disciplines and sets minimum
standards for entry and education, continuous update of education and training and a standard of ethical
conduct and performance.1211 To date, there has been a tendency in the country to adopt a narrow
definition of the legal profession which includes attorneys and advocates in the private sector and state
attorneys, state advocates, magistrates and judges in the public sector. The right of appearance in a court
of law and the authority to preside over a matter in a court of law were the key features that distinguished
this cohort from other ‘legal practitioners’.
1211
Cowley, JI, A comparative study of paralegalism in Australia, the United States of America and England and
Wales Southern Cross University, 2004) p. 224.
207
However, legal administration in South Africa comprises more than just court officers in the private
and public sector, it includes administrative officers under various governmental departments, other
officials in the administration of justice in the public service, top ranking officials in the South African
Police Services, law commissions and institutions offering legal aid and advice. The myriad of
administrative officers and clerks involved in legal administration is a clear indication that there are
legal and quasi-legal functions being performed by various persons who may or not be members of the
narrow legal profession. Furthermore, there is a host of legal and quasi-legal services being rendered
by, for example, community-based paralegal practitioners and employees and practitioners in various
business sectors without this service being recognised or regulated. Legal process services (LPS), for
example, includes legal and quasi-legal activities that are for the most part disguised in ‘managed
services’ environments and are routinely performed by non-lawyers.1212
In the Transformation of the Legal Profession: Discussion Paper it was further pointed out that some
prosecutors, especially those who serve in the lower courts, were not recognised as a fully-fledged
branch of the practising legal profession. Moreover, lawyers who opted to be employed by the corporate
sector, government departments and non-governmental agencies were not recognised or regulated by
statute as members of the practising legal profession. More importantly, it was noted that paralegal
practitioners were also not recognised or regulated by statute. However, Justice Vision 2000 did not
particularly focus on defining constructs.
8.2.1. Justice Vision 2000
Justice Vision 2000 did not address an expanded definition of the narrow legal profession directly nor
did it define the legal profession. It nevertheless turned its focus particularly on the narrow legal
profession in addressing the issue of transformation. Here Justice Vision 2000 developed three strategic
goals, which are:
- develop[ing] a profession which is accessible and reflects the diversity of the South African
society
1212
These activities vary from ‘low-level tasks (transcriptions, form fill, collections etc) to mid-level tasks (claims
management, e-discovery, contract management, etc.) through to high level, very complex tasks such as due diligence,
compliance and specialised contracting’. (Channel Consult, Legal Process Services, (2015) Cape Town: Business
Process Enabling South Africa p. 13.).
They vary from back-office assistance for legal firms to pure legal process or tasks. It is estimated that approximately
10 000 seats support domestic legal tasks or processes in South Africa and this has tremendous potential for growth
(Channel Consult (2015).)
208
- promoting a legal profession which is affordable to the broader segments of South African
society
- maintain[ing] a high level of professional standards without unduly hampering the process of
transforming the profession.1213
No reference was made to the paralegal under the recommended strategies for the transformation of the
legal profession. However, reference was made to the paralegal practitioner under the theme ‘Access
to Justice for All’, together with increased access to the legal profession and legal aid. The intention to
expand the legal profession by including paralegal practitioners had to be inferred from the strategies
to professionalise paralegal practice and the earlier drafts of the Legal Practice Bill.
8.2.2. The Legal Practice Bill 2000
In the Important Notice Concerning the Draft Legal Practice Bill 2000 that accompanied the Draft Bill
it was stated that the National Legal Forum on Legal Practice reached consensus that all legal
practitioners and paralegal practitioners should be regulated by one statute and one statutory regulatory
body. It further included paralegal practitioners in its recognition of the freedom of practitioners of the
law to practice as members of professional voluntary associations. There is therefore no doubt that it
was the intention from the outset for the paralegal practitioner to be included as a member of the legal
profession. Although this Draft Bill does not contain a definition of a legal or a paralegal practitioner,
a reading of the text made it clear that the paralegal practitioner was indeed considered to be part of the
legal profession. The Bill was ‘…to provide for the registration of paralegal practitioners…’1214 among
other things. Specific provisions within the Bill detail the registration of paralegal practitioners1215 and
the recognition of their membership of voluntary associations.1216 The Draft Legal Practice Bill 2000
was followed by the Task Team Proposal on the Legal Practice Bill 2002.
8.2.3. Legal Practice Bill 2002 (Task Team Proposal)
Both the long title and the purpose statement of the Task Team Proposal on the Legal Practice Bill
indicated that legal as well as paralegal practitioners would be governed by the same statutory body and
the same statute. The long title reads,
1213
Pages 40-41.
1214
Legal Practice Bill 2000.
1215
Clause 11(4).
1216
Clause 11(5).
209
‘[t]o provide for the establishment of the Legal Practice Council of South Africa; the
admission and enrolment of legal practitioners and paralegal practitioners; the
regulation of legal services; and to provide for matters connected therewith’.1217
The purpose statement, likewise, indicates that paralegal practitioners would be regarded as an integral
part of an expanded legal profession.1218 The definitions clause of the Bill gives recognition to the
paralegal practitioner by defining a legal practitioner as ‘a person admitted as such in terms of section
25(1) and for the purposes of Chapter 5 and 6 includes a paralegal practitioner and practice’.1219 It
further defines a paralegal practitioner as a person who may render legal services as contemplated in
terms of section 43.1220 The Bill further makes provision for the establishment of a Paralegal Committee
that would advise on paralegal matters.1221
1217
own emphasis added.
1218
2. The purpose of this Act is to—
(a) regulate the rendering of legal services;
(b) create a framework for—
(i). the effective rendering of legal services;
(ii). the development and maintenance of appropriate norms and standards for the rendering of legal
services by legal practitioners and paralegal practitioners;
(iii). the regulation of the admission and enrolment of legal practitioners and paralegal practitioners;
(iv). the development of adequate training programmes for candidate legal practitioners and candidate
paralegal practitioners;
(v). engendering public confidence in legal practitioners and paralegal practitioners;
(vi). participation of all legal practitioners in the legal profession;
(c) enhance access to justice; and
(d) provide a fair and effective procedure for the resolution of complaints against legal practitioners and
paralegal practitioners.
1219
own emphasis added.
1220
Section 43.
(1) The Minister may, after consultation with the Council and the Paralegal Committee, make regulations to
regulate the rendering of legal services to the public by paralegal practitioners.
(2) The Minister may, after consultation with the Chief Justice and in consultation with the Council and the
Paralegal Committee, by notice in the Gazette, authorise paralegal practitioners to appear in courts,
subject to such conditions as he or she may determine.
(3) In deciding whether to grant the authority referred to in subsection (2), the parties concerned must have
regard to—
(a). the need to ensure that persons appearing in court are represented, where the interests of justice so
require; The GCB view is that the tests cannot be applied to a company prior to incorporation, and
that the better option would be to require the company to apply for a certificate of consent from
time to time.
(b). the need to ensure that such representation is adequate and competent;
(c). the availability of registered legal practitioners to represent persons in particular courts and in
particular areas; and
(d). other aspects of the public interest.
(4) The authority or consent referred to in subsection (2) may be given in respect of a stipulated area, court,
class or type of case, and period.
1221
Section 44
210
The view of the Task Team was therefore clear, that the paralegal practitioner was to be regarded as a
member of an expanded legal profession. The Task Team Proposal was followed by various drafts of
the Legal Practice Bill including the Law Society of South Africa’s own version thereof.
8.2.4. Legal Practice Bill 2002 (Law Society of South Africa)
The definitions clause of the Law Society of South Africa’s version of the Legal Practice Bill 2002 also
contains a description of a practitioner which ‘includes legal and para-legal practitioner’. This section
also defines, ‘paralegal practitioner’,1222 and the Bill makes provision for the establishment of a ‘Para-
legal Executive Committee’1223 and a ‘Para-legal forum’ as opposed to a Paralegal Committee as
recommended by the Task Team Proposal.1224 Its purpose statement also clearly stated that paralegals
would be governed by this statute,1225 thus considering them to be part of the narrow legal profession.1226
The 2002 versions of the Legal Practice Bill were replaced by the first official draft of the Legal Practice
Bill 2009.1227
8.2.5. Legal Practice Bill First Working Draft 2009
The long title of this version of the Legal Practice Bill contained no reference to paralegal practitioners.
It reads,
‘[t]o regulate legal practitioners; to provide for the establishment, powers, functions
and duties of the South African Legal Practice Council; to provide for the admission
and enrolment of legal practitioners; to provide for the Legal Practice Fidelity Fund; to
provide for the establishment of a Legal Services Ombud; and to provide for matters
connected therewith’.
1222
‘means any person who is registered and enrolled to render legal services in terms of section 13 of this Act’
1223
‘means the committee established in terms of section 82’
1224
‘means the South African Para-legal Forum established in terms of section 79’
1225
2. Purpose of this Act
The purpose of this Act is to-
(a) integrate, unify and regulate the affairs of persons engaged in legal practice;
(b) to create a framework for the –
(i). increase in the entry of persons into legal practice;
(ii). development and maintenance of appropriate professional and ethical norms and standards for the
rendering of legal services by legal and para-legal practitioners;
(iii). engendering of public confidence regarding services to be rendered by legal and para-legal
practitioners; and
(iv). participation of legal and para-legal practitioners in regulating the affairs of the legal fraternity;
(c) enhance access to justice; and
(d) promote and protect the public interest in respect of legal matters.
1226
See the discussion in para below (lack of recognition of the paralegal).
1227
211
However, the Bill does make provision for the registration of paralegal practitioners although it contains
no definition thereof.1228 Chapter 4 expressly makes provision for the rendering of services by paralegal
practioners and the establishment of a ‘Paralegal Committee’. It would therefore seem that, in the
absence of a definition of ‘legal practitioner’ mentioned in the long title, that the paralegal practitioner
was to be included as a member of the legal profession. This version was replaced by the Legal Practice
Bill 2012.
8.2.6. Legal Practice Bill 20121229
In this version of the Legal Practice Bill reference to the paralegal practitioner in the long title, the
purpose statement and the definitions clause has disappeared completely. This version made it clear
that only attorneys and advocates are considered to be members of the legal profession.1230 The only
reference to the paralegal practitioner is to be found in section 34 which reads,
(9)‘(t)he Council must, within two years after the commencement of Chapter 2 of this
Act, investigate and make recommendations to the Minister on—(b) the statutory
recognition of paralegals.’
It is therefore clear that in spite of the fact that the long title of the Bill states that it is ‘(to) provide for
a legislative framework for the transformation and restructuring of the legal profession in line with
constitutional imperatives’, the drafters have retreated to the original, narrow definition of the legal
profession which excludes everyone who has not been admitted as an advocate or an attorney, in
particular, the paralegal practitioner. This Bill has suffered a further seven amendments before it was
submitted for approval. President Zuma finally signed the Legal Practice Act into law on the 22
September 2014.
8.2.7. The Legal Practice Act 28 of 2014
This Act confines the definition of a legal practitioner to ‘an advocate or attorney registered as such in
terms of section 30’. Section 30 of the Legal Practice Act stipulates that a person duly admitted by the
1228
Clause 14(10). A person duly qualified in terms of this Act must apply to the Council in the prescribed manner to
be registered and enrolled as a paralegal practitioner.
Clause 14(11) . Upon receiving the application in subsection (10), the Council must enter the name of the applicant
on the roll of paralegal practitioners in the prescribed manner.
Clause 33. Any person, who has met the requirements as prescribed, may apply to the Council to be registered and
enrolled as a paralegal practitioner.
1229
Legal Practice Bill 2012 [B20B-2012] Legal Practice Bill 2012 [B20B-2012].
1230
Clause 1. ‘legal practitioner’ means an advocate or attorney registered as such in terms of section 30.
212
High Court as a legal practitioner must apply to the Legal Practice Council for registration as such and
for enrolling his or her name on the Roll. Therefore, what constitutes the legal profession in South
Africa has been settled by the Legal Practice Act. This statute governs advocates and attorneys. The
National Forum on the Legal Profession drafted a code of conduct pursuant to section 97(1) (b) of the
Legal Practice Act which extends the legal profession marginally to include ‘corporate counsel’. 1231
The paralegal practitioner has for all intents and purposes been left out of the Legal Practice Act and all
matters related to it deferred to the Legal Practice Council.1232 The Legal Practice Act therefore falls
short of the transformative agenda of Justice Vision 2000 as given effect in the earlier drafts of the Act
insofar as it relates to the paralegal practitioner. This Act nevertheless left the door open for the
recognition of the paralegal practitioner and its scope of practice in a number of ways. The authority
to render legal services as described in the Legal Practice Act is rendered subject to any other law 1233
and all paralegal-related matters are referred to the Legal Practice Council.1234
8.3. THE TRANSFORMATION OF THE LEGAL PROFESSION
Pruitt declared that ‘South Africa, at the turn of the century, was a country awash with transformation
– or at least the rhetoric about transformation…’.1235 What exactly this means in theory is difficult to
ascertain as a conceptual framework of transformation is absent from policy documents and has to be
gleaned from the goals and the strategies that were adopted at the time. It therefore comes as no surprise
that a definitive description of the ‘transformation of the legal profession’ in South Africa is lacking in
policy documents and most commentary and research papers on the issue.1236 Where a description is
indeed offered, it is mainly viewed as a product and narrowly focused on what Klaaren refers to as
‘apartheid-era concerns.1237
1231
This refers to legal practitioners who are not in private practice.
1232
Clause 34(9)(b)
1233
Clause 33(1).
1234
Clause 34(9)(b).
1235
Pruitt, LR, 'No Black Names on the Letterhead? Efficient Discrimination and the South African Legal Profession',
(2006), 23(3), Michigan Journal of International Law, pp. 545–676.
1236
Centre for Applied Legal Studies & Foundation for Human Rights, Transformation of the Legal Profession,
(2014) Johannesburg, South Africa: Foundation for Human Rights.
Justice Vision 2000: Draft Strategic Plan for the Transformation and Rationalization of the Administration of Justice
(2000).
Department of Justice and Constitutional Development, A Framework for the transformation of the State Legal
Service, (2012) Pretoria, South Africa.
1237
The Centre for Applied Legal Studies defines transformation of the legal profession as ‘an open bias-free and non-
hierarchical profession which sees the removal of prejudices so that talent can flourish, unhindered by assumptions
that are often linked to the characteristics of racial, gender and sexual orientation, among others’.(Centre for Applied
Legal Studies & Foundation for Human Rights (2014).).
213
The new democratic order in South Africa is a product of a negotiated settlement between the pre-1994
apartheid regime and a coalition of social forces and labour. The negotiators at the time adopted a
symbiotic model of transformation that embraces a vision of symbiotic metamorphosis most closely
associated with a social democratic political tradition. This model, ideally, allow coalitions of social
forces and labour to use the state to bring about evolutionary adaptations in collaboration with the
bourgeoisie.1238
The transformation of the legal profession must be viewed against the backdrop of the transformation
of the administration of justice in the country which has, as its purpose, effecting an ‘egalitarian,
democratic social emancipation’.1239 The Framework for the Transformation of State Legal Services
describes ‘transformation’ as:
‘… the transformation of the administration of justice, which includes the restructuring

of state legal services, as part of the broader societal transformation agenda aimed at
fundamentally changing institutions of governance and society with a view to aligning
all aspects of South African life with South Africa’s post-apartheid Constitution.’1240
The post 1994 Draft Strategic Plan for the Transformation and Rationalisation of the Administration of
Justice saw the light as Justice Vision 2000. 1241 The draft strategic plan formed the preliminary
framework for transforming the administration of justice in South Africa. In its introduction the
Ministry of Justice acknowledged that the adversarial nature of the legal system had resulted in unequal
access to legal services.1242
Justice Vision 2000 proposed a holistic approach to the transformation of the administration of justice
and identified critical strategic areas of intervention, namely, ‘transforming the department of justice,
structures administering justice, crime, access to justice, the legal profession and training.’ 1243
Constituted against a global context, this transformation is premised on the global drive for access to
justice. The founding document for the transformation of the administration of justice made it clear
that the ‘reform and transformation of the administration of justice is a fundamental pre-requisite to
1238
Wright, EO, 'Elements of a theory of transformation' in Envisioning Real Utopias (2010) London, UK: Verso 191–
214.
1239
Wright, EO (2010).
1240
Department of Justice and Constitutional Development (2012), para 4.
1241
Justice (2000).
1242
Justice (2000). p. 1.
1243
Justice (2000) p. 1.
214
give legitimacy to the new South Africa…and must be seen against transforming the entire South
African society’.1244 Justice Vision 2000 prioritised facilitative measures that would ensure affordable
access to justice. It emphasised the importance of educational institutions in this transformation
process. These institutions would shape the values of the new legal order and determine its efficacy.
In so doing, it would strengthen the reform initiatives and ensure cohesion of the various parts of the
transformation process.1245 At the heart of this transformation is the dismantling of a regulatory and
institutional framework which had as its fundamental purpose the reproduction of a society so unequal,
that it was an affront to the very essence of humanity.
Justice Vision 2000 thus proposed an evolutionary process of reconstruction of the existing regulatory
framework in order to guarantee access to a reformed institutional framework that gives effect to the
values of a democratic and constitutional order centred on the social emancipation of its citizens. This
mode of transformation reflects the characteristics of a symbiotic model of transformation although not
explicitly communicated in policy documents. The transformation of the legal profession can therefore
not be seen as distinct from the transformation of the administration of justice, which is central to
achieving the ideal of an egalitarian society.
However, inasmuch as the Justice ‘sector’ is for practical purposes regarded as distinct from, among
others, transport, energy and agriculture, it is not a stand-alone sector. Development is at the heart of
the social emancipation of the disadvantaged and marginalised and spans all development sectors.
Justice, therefore, arguably permeates almost every aspect of developmental activity. It was thus noted
that:
‘(e)very policy in every development sector, for example, is ultimately actionable, and
enforceable to the extent that it is articulated in and supported by law and all behaviour-
whether by individuals, groups or organisations is a function of a complex set of rules
systems ranging from social norms to national constitutions.’1246
Furthermore, although practitioners in the field observed that most development processes fail to even
consider these rules systems,1247 it is my view that where they do, there is gravitation towards the
1244
Justice (2000).
1245
Justice (2000). p. 3.
1246
Sage, C, Menzies, N & Woolcock, M, 'Taking the Rules of the Game Seriously: Mainstreaming Justice in
Development' in Golub, S & McInerney, T (eds) Legal Empowerment: Practitioners’ Perspectives (2010)
International Development Law Organisation 19–37 p. 22.
1247
Sage, C Menzies, N & Woolcock, M (2010).
215
jurisprudential aspects thereof. The social context remains sadly neglected. Development, by its very
nature, challenges the status quo and alters social relations, inevitably resulting in conflict. An
understanding of the rules that govern everyday life provides insight into how conflicts arise, accelerate
and are resolved. Legitimate and safe spaces must be created where members of society can negotiate
their competing interests and expectations. At the risk of repetition, this enables justice to occur in
many rooms, not only in a court room. A process of transformation that excludes the beneficiaries
thereof runs the risk of being out of sync with the needs of those beneficiaries and has the potential to
curtail its very purpose.
Klaaren1248 argues that our knowledge of the legal profession has been distorted because it has been
over-contextualised. He claims that the focus in the legal profession has been on representivity in
respect of race and gender1249 and on the role of law with respect to apartheid, which was mostly
jurisprudential in nature.1250 He attributes this to the gap in the literature as South Africa does not
feature in the standard historical comparative literature on the legal profession. If this view is proven
to be correct, it would apply even more so to the paralegal ‘profession’, which enjoys embryonic status
compared to the narrow legal profession.
Transformation in the legal profession thus seemed to have very little to do with the emancipation of
the poor and the marginalised in society and more with correcting the skewed racial and gender
demographics of the profession and providing access to lucrative markets which are inaccessible to
‘outsiders’. This view is by no means intended to reduce the importance of correcting these skewed
demographics nor is it an attempt to minimize the extent of the harm suffered by those professionals
who have been subjected to these discriminatory practices. To the contrary, it serves as a reminder to
the beneficiaries of the corrective measures that, by gaining access, they have become members of an
elite class whose very existence depends on the reproduction of the dominant modalities in the legal
profession, lest they forget.1251 The nagging perception remains that the narrow legal profession
presents the greatest obstacle to its own transformation and an obstacle to the transformation in society,
notwithstanding adjustments in respect of race and gender.
An examination of the rationale for the transformation of the legal profession and the response in respect
of law reform therefore would assist in providing further insight.
1248
Klaaren, J, A Texture of Legality: The Legal Profession in South Africa (2010) Madison, USA.
1249
Pruitt, LR 2006 Pruitt, LR (2006).
Godfrey, S & Midgley, R, Scarce and Critical Skills: Law Professionals, (2008) Department of Labour.
1250
Budlender, G (2004) p. 339.
1251
These dominant modalities are a fixation on the rule of law orthodoxy and the notion that notion that legal systems
are lawyer-centred and lawyer-driven.
216
8.4. THE RATIONALE FOR THE TRANSFORMATION OF THE LEGAL PROFESSION
The legal profession in 1994 was characterised by a divided narrow legal profession, fragmented
education and training, extremely skewed racial demographics, uneven geographical distribution, high
cost of legal services and lack of recognition of paralegal services.1252 These conditions show that the
transformation of the legal profession entails much more than ensuring that the demographics in respect
of race and gender reflect the diversity of the South African population, although the focus in the
profession has primarily been on this aspect of transformation. Each of these conditions will be
considered in turn.
8.4.1. A divided legal profession
South Africa has traditionally followed a divided private legal profession, with legal practitioners falling
into one of two groups, attorneys or advocates. In addition to this divide, there were also different
statutes governing each of these divisions of the narrow legal profession in South Africa.1253 Section
1(xvi) the Attorneys Act1254 defined a practitioner as an ‘attorney, notary or conveyancer’ and the
Admissions of Advocates Act1255 merely referred to an advocate as an ‘advocate of the Supreme Court
[High Court]’.1256
Justice Vision 2000 adopted Goal 2, namely, ‘promoting a legal profession which is affordable to the
broader segments of the South African Society’. It proposed three strategies to achieve this goal which
included conducting research to determine the feasibility of a single unified legal profession and
examining the impact of such a profession on governance, professional standards, legal education and
access to legal services.1257 The extent to which this research has been conducted is uncertain.
The Legal Practice Act has repealed the range of statutes that governed attorneys and advocates in the
territory of South Africa, including former homelands of Transkei, Ciskei, Venda and Boputhatswana.
It nevertheless retained the divide in the legal profession.1258 However, all legal practitioners will be
governed by the Legal Practice Council and matters relating to the paralegal ‘profession’ have been
1252
1253
See Schedule to the Legal Practice Act (2014).
1254
Attorneys Act, 53 of 1979.
1255
Admissions of Advocates Act, 74 of 1964.
1256
Section 1
1257
Justice (2000) p. 40.
1258
Section 119.
217
deferred to this Council. If the intention is to professionalise the paralegal sector, it would create a third
division of the legal profession which runs contrary to the intention to unify the profession.
8.4.2. Fragmented legal education and training
One of the aspects identified in the Discussion Paper was the inequality within the legal profession in
respect of the requirements for admission to legal practice and the accompanying perception of a
hierarchy of practitioners.
South African universities at the time offered a number of different degrees serving different
purposes.1259 This fragmented approach to legal education was subsequently consolidated with the
introduction of the four-year LLB degree.1260 The LLB Curriculum Research Report 2010 highlights
the concerns raised by traditional universities over the poor throughput rates and the under-preparedness
of candidates entering the LLB programme, with the resultant poor readiness of many LLB graduates
exiting the programme.1261 This has led to a review of the four year LLB and the launch of a standard
setting framework exercise for the LLB by the Council for Higher Education.1262 During this review,
the articulation from the paralegal sector into the narrow legal profession, in accordance with
international precedent, was completely disregarded.
Formal education and training for practitioners of the law was not always a requirement for legal
practice and the authority for the admission of attorneys resided with the executive. 1263 The Law
Certificate was the earliest formal qualification which was informally taught by practitioners of the
law.1264 The Attorneys, Notaries and Conveyancers Admissions Act1265 regulated practical legal
training for attorneys and it was subsequently repealed by the Attorneys Act. 1266 By this time the
fragmentation of legal education reflected the profession’s divided practice of the law as well as the
public/private divide of the law.
1259
They were, B.Iuris (for public prosecutors and magistrates), B.Proc (for attorneys) and the post graduate LLB
(for all legal professions).
1260
Qualification of Legal Practitioners Amendment Act, 78 of 1997. This Act amended s 3(2)(a)(i)(aa) of the
Admissions of Advocates Act (1964). and s 2(1)(a) of the Attorneys Act (1979).
1261
Pickett, G (2010).
1262
Council on Higher Education, Draft Qualification Standard for Bachelor of Laws (LLB), (2015) .
1263
Wildenboer, L, 'The Origins of the Division of the Legal Profession in South Africa : a Brief Overview', (2010),
16(2), pp. 199–225. p. 219–220.
1264
Greenbaum, Lesley; Rycroft, A, 'The development of graduate attributes : the Book of the Year project', (2014),
28(1), South African Journal of Higher Education, pp. 91–109.
1265
Attorneys, Notaries & Conveyancers Admission Act, 23 of 1934.
1266
Attorneys Act (1979)..
218
The three year B.Iuris degree became the minimum requirement for civil servants such as prosecutors
and magistrates whereas the four year B. Proc degree was the minimum academic qualification required
for admission as an attorney whose practice was in essence confined to the lower courts.1267 The post-
graduate LLB was the prescribed minimum academic qualification for practice as an advocate which
qualified the practitioner to appear in higher as well as lower courts.1268 A minimum three year first
degree was a pre-requisite for admission to this LLB degree. Practical legal training for attorneys was
two years of article clerkship culminating in an admissions examination set by the Law Society of South
Africa. Admission to the General Bar Council as an advocate initially required serving pupillage for a
period of six months culminating in an admissions examination set by the Council in the various
provinces. LLB graduates who did not seek admission to the General Bar Council were permitted to
practice following their admission by the High Court without serving pupillage and sitting for an
examination.
The Discussion Paper raised this fragmented legal education as one of the areas to be addressed during
the transformation of the legal profession. The Qualification of Legal Practitioners Amendment Act1269
attempted to consolidate the fragmented approach by introducing the four year LLB degree at NQF
level 8.1270 However, lack of consensus on the generic nature of this degree nevertheless resulted in a
fragmented implementation thereof with some universities retaining the LLB as a second degree
preceded by a three year first degree. The new LLB presented a number of challenges for legal education
and practice with the result that Council for Higher Education undertook the LLB Curriculum Project,
with a view to ‘(1) assessing the extent and commonality of views about how effective the curriculum
is in preparing graduates for the various career paths they follow, and the obstacles to their success; and
(2) making suggestions for improvement’.1271
This report published a number of findings with regards to the new LLB curriculum. The data collected
revealed that respondents were of the opinion that there was a disjuncture between the curriculum and
the knowledge skills and competencies required for the profession.1272 They considered the curriculum
to be mainly shaped by content, with superficial knowledge-based learning and very little emphasis on
1267
Attorneys Act (1979).
1268
Admissions of Advocates Act (1964).
1269
Qualification of Legal Practitioners Amendment Act (1997).
1270
NQF refers to the National Qualifications Framework.
1271
Pickett, G (2010) p. 9.
1272
Pickett, G (2010).
219
the capabilities that the professions expected.1273 The curriculum displayed a divide between legal
education for professions and legal education as a ‘liberal arts’ education.1274
Participants also found that in some instances that the curriculum was crammed and overburdened, with
inappropriate scaffolding of subjects.1275 Many universities exceeded the minimum 480 credits required
for the LLB.1276 The teaching skills of law lecturers differed across universities and deficiencies in the
teaching skills of law lectures were noted.1277 Respondents expressed diverse opinions on the role of
professional training and highlighted the lack of articulation of the knowledge, skills and attitudes
expected as outcomes of professional education.1278 Very little to no career guidance was offered to
1279
graduates during the course of their study. Concerns were expressed over the duration of the
programme yet respondents were divided over whether the lack of preparedness for the profession was
as a result of the curriculum or other factors impacting on the preparation of the graduates, such as under
preparedness for tertiary studies and the disadvantaged background of many of the students in the
programme.1280 The disparate resourcing at different universities was also noted.1281 Following the
report, the Council on Higher Education conducted a review of law curricula across the country. The
outcome of the review was that not a single university in the country had the re-accreditation for their
LLB qualifications confirmed unconditionally.1282 The full report was not available at the time of the
submission of this dissertation. This shows the extent of the crisis with legal education currently in the
country.
The array of legal practitioners reflected in the Career Guide to the Legal Profession published by the
Department of Justice and Correctional Services is testimony to the variety of services to be rendered.
The Department acknowledged that:
‘Since people with legal qualifications are found in almost all sectors of employment,
it will be impossible to discuss ALL the career possibilities available to them… This
guide, therefore, is limited to the following careers available in the legal profession:
1273
Pickett, G (2010) p. 164.
1274
Pickett, G (2010) p. 52.
1275
Pickett, G (2010) p. 164.
1276
Pickett, G (2010) p. 64.
1277
Pickett, G (2010) p. 44.
1278
Pickett, G (2010) p. 92.
1279
Pickett, G (2010) p. 27.
1280
Pickett, G (2010) p. 41–59.
1281
Pickett, G (2010) p. 173.
1282
Council on Higher Education (2017).
220
attorneys’ profession, the advocates’ profession, the legal advisor and positions
available in the Department of Justice.’1283
The diverse opinions on the purpose of the LLB among academics, begs the question as to what informs
these curricula. It is clear that tension between the public and private sectors plays out in the curricula
produced by universities. The four year LLB degree as an intervention to assist in the transformation
of the legal profession may have contributed to the adjustment of the skewed racial and gender
demographics in the narrow legal profession but did little to contribute to an overall transformation
agenda. Prestigious law firms are held up by faculty as inspiration, influencing the aspirations of
prospective practitioners, contributing to the establishment of a divide based on social status with access
to justice as the casualty. It therefore comes as no surprise that the lack of access to justice for the poor
and the marginalised persists in contemporary South Africa.
Moreover, one fundamental flaw with post-school legal education is its lack of coordinated, integrated
higher education curriculum on a continuum, taking into consideration the comprehensive legal needs
in the country. The main focus is on secondary legal services and fee paying clients leaving the needs
of the majority of the citizens in the country unmet.
8.4.3. Racial and gender demographics pre - 1994
Deputy Minister Nel1284 remarked that, ‘the heavy onus of making the judiciary appear to resemble
South Africa [in 1994] lay on the shoulders of three black men and two white women’.1285 The Minister
noted that 160 of the 165 judges on the bench at the time were white men. These skewed demographics
were mirrored in the composition of the bar as the overwhelming majority of legal practitioners were
white males.1286 Statistics prior to 1994 paint a dismal picture. The profile of practitioners of the law
was not by default but effected through a statutory and institutional framework designed with one single
purpose in mind, namely to ensure the dominion of the white minority in the country over all.
The Extension of University Education Act1287, for example, was enacted to restrict the admission of
‘non-white’ applicants into universities, segregating university education along racial lines. The long
title of the Act read:
1283
Department of Justice and Constitutional Development, “Career Guide to the Legal Profession”, (2016), available
at: Justice College http://www.justice.gov.za/juscol/index.html p. 5. (accessed 10 September 2016)
1284
Deputy Minister of Justice and Constitutional Development (11 May 2009 – 09 July 2013).
1285
Speech delivered to Black Lawyers Association (BLA) - Student Chapter held at the University of South Africa
(UNISA) on 4 May 2013.
1286
Pruitt, LR (2006).
1287
Extension of University Education Act, 45 of 1959.
221
‘To provide for the establishment, maintenance, management and control of university
colleges for non-white persons; … for the limitation of the admission of non-white
students to certain university institutions;…’1288
Section 32 expressly prohibited the registration and attendance of persons of colour at universities other
than the University of South Africa, with the exception of students attending Medical School and
pipeline students. Black students who were already registered at these universities were at least allowed
to complete their qualifications.1289 Those who sought admission to a white university required a special
ministerial permit certifying that no equivalent programmes were offered at black universities.1290 This
placed a severe restriction on the opportunities for black applicants compared to their white
counterparts.
In addition, although newly established black universities started running law programmes, these
universities were less favourably funded than their white counterparts.1291 The facilities and resources
at white universities enabled them to comply with the State’s funding formula better.1292 Working
conditions of staff at black universities were poorer than those of their white counterparts as the
financial resources accumulated by the latter enabled them to augment the salaries of staff who
possessed critical skills for the university.1293 The Extension of University Education Act was
ultimately repealed by the Tertiary Education Act1294 which was subsequently repealed by the Higher
Education Act.1295
Moreover, although the practice of law was extended to all, in reality, a black lawyer had to obtain a
permit to set up practice in the urban areas.1296 The restrictions placed on the university education of
1288
Own emphasis added.
1289
Section 32(1) read, ‘As from the date to be fixed by the Governor-General by proclamation in the Gazette, no non-
white person shall register with or attend any university established by Act of Parliament, other than the University of
South Africa, as a student: Provided that the provisions of this sub-section shall not be construed as preventing any
non-white person who is registered as a student at a university other than the University of South Africa, on the said
date or who was so registered prior to the said date, from completing at that university the course of study or training
for the degree, diploma or certificate for which he is or was so registered: Provided further that this sub-section shall
not apply to non-white persons in respect of their registration and attendance as students at the Medical School’
1290
Godfrey, S, 'The legal profession: transformation and skills', (2009), 126(1), South African Law Journal, pp. 91–
123. p. 98.
1291
Ministry of Justice (South Africa), Legal Forum on Legal Education proceedings: proceedings of the Legal
Forum on Legal Education hosted by the Ministry of Justice in Cape Town on 21/22 April 1995., (1995) Cape Town,
South Africa: Ministry of Justice.
1292
Ministry of Justice (South Africa) (1995).
1293
Ministry of Justice (South Africa) (1995).
1294
Tertiary Education (Amendment) Act, 3 of 1993.
1295
Higher Education Act, 101 of 1997.
1296
Pruitt, LR (2006).
222
the black population resulted in more whites graduating from law schools and entering the
profession.1297 White law firms dominated the profitable branches of legal practice whereas their black
counterparts were in essence confined to criminal law and in some instances human rights law.1298 Pruitt
presented anecdotal evidence that black lawyers historically served individual clients while white
lawyers tended to serve institutional clients. Not many black lawyers generated legal work of a
commercial nature and thus did not gain sufficient commercial legal expertise.1299 Justice Vision 2000
responded to these conditions by focusing on the narrow legal profession with no reference to how the
paralegal ‘profession’ can contribute to this area of transformation.
Justice Vision 2000 adopted the following strategic goal in response to the skewed racial and gender
demographics in the narrow legal profession, namely, ‘(to) develop a profession which is accessible
and reflects the diversity of the South African society’.1300 It suggested a number of strategies to give
effect to this goal. Justice Vision 2000 proposed that research be conducted into the requirements for
admission into the profession and the role of the profession in the transformation process. The research
conducted to date was commissioned by the Department of Labour and focused on the scarce and
critical skills in the legal profession.1301
8.4.4 Racial and gender demographics post -1994
There is a dearth of literature on the legal profession. Klaaren ascribed this to two main factors. 1302 The
first is the lack of state funding for empirical research on the administration of justice and the second is
the lack of substantial and sustainable nationally focused socio-legal scholarship. Both factors have
equally hampered efforts for the recognition of the paralegal practitioner as this would require a process-
driven approach to transformation and development in the justice sector. Sage and others argue that
such an approach ‘does not fit easily with the prevailing imperatives of most development institutions,
which strongly prefer manageable inputs and knowable, predictable outcomes’.1303 South Africa is no
exception. Moreover, a lack of resources may impede such an approach as prioritising the development
of local capacity to establish in-depth evidence as the foundation for reform has the potential to be
resource intensive.1304
1297
Pruitt, LR (2006).
1298
Pruitt, LR (2006).
1299
Pruitt, LR (2006).
1300
Justice (2000).
1301
Godfrey, S (2009).
1302
Klaaren, J (2010).
Pruitt, LR (2006).
1303
Sage, C Menzies, N & Woolcock, M (2010) p. 35.
1304
Sage, C Menzies, N & Woolcock, M (2010).
223
Empirical studies on the narrow legal profession have only emerged recently. In a number of these
studies the conditions that lead to Justice Vision 2000 were considered and in most instances it would
seem that these conditions persisted throughout the first decade of democracy and are still with us
today.1305
AfriMAP reported that the skewed racial and gender demographics persisted throughout the first decade
of democracy and that this was reflected in the judiciary as well as the private legal profession.
Information provided by the Human Resource Directorate of the former Department of Justice and
Constitutional Development confirms that white males still dominated the judiciary in the superior
courts.1306 The record reflected dismal figures for all females.1307 The statistics on record in the
Secretariat of the Magistrates Commission show similar trends in magistrates courts.1308 These trends
emanated from the bar from which most of these presiding officers were drawn. The General Council
of the Bar reported a similar racial and gender bias and although the Law Society of South Africa did
not offer a breakdown of the racial demographics at the time, it was concluded that it displayed a similar
bias.1309
Pruitt conducted a series of interviews between March 1999 and July 2000 which left her to conclude
at the time that South Africa’s elite commercial law firms still reflect a largely segregated labour market.
She noted that,
‘(a) decade after the dismantling of apartheid began and more than seven years after
the first democratic elections, the impact of apartheid’s structures on all aspects of
South Africa’s civil society, including the legal profession looms large’.1310
She stated that the racial and gender demographics of the private legal profession still did not reflect
the diversity of the population, nor were the egalitarian values of a new democratic order reflected in
the governance structures of these professions. This explains in part, the resistance from the narrow
legal profession to the establishment of a Legal Practice Council by the Legal Practice Act which would
1305
Godfrey, S (2009).
AfriMAP & Open Society Foundation for South Africa (2005).
Pruitt, LR (2006).
Pickett, G (2010).
Centre for Applied Legal Studies & Foundation for Human Rights (2014).
1306
AfriMAP & Open Society Foundation for South Africa (2005) p. 61.
1307
1308
1309
1310
Pruitt, LR (2006).
224
in essence govern these professions.1311 She further noted that, ‘the taxonomy of attorney practices’
during the apartheid period remains relevant in the post-apartheid legal marketplace.’1312
The study reported that, ten years into democracy, the top five commercial firms have tripled or
quadrupled their intake of black candidate attorneys. However, it was noted that the numbers still were
not representative of the demographics of the country.1313 Furthermore, she observed that the numbers
declined sharply at the ranks of black professional assistants.1314 More importantly, the under-
representation of attorneys of colour in the higher echelons of these law firms was indisputable.1315 She
attributed this to the organisational structure of these firms and the historical and social context of their
evolution.1316
The dismantling of the discriminatory statutory framework and State investment in infrastructure at
historically black universities seemed to make a difference to the racial demographics in the profession.
In March 2008 the Department of Labour commissioned research into scarce and critical skills of law
professionals in the country. It was reported that in 2007 Africans made up the vast majority of first
year registrations in law programmes in the country and the gender distribution of the first year entrants
was approximately evenly balanced.1317 More African and female law students enrolled for the final
year.
However, compared to their white counterparts, the enrolment was still not representative of the
demographics of the country.1318 Although the number of female graduates overtook their male
counterparts, there has been a decline in African and coloured graduates. White graduates exceeded
their African counterparts and the reason for this trend has not been investigated.1319 This trend carried
into the vocational training as more white candidates were registered for articles of clerkship in 2006
and General Council of the Bar reported that the majority of African pupils who sat for their
examinations failed.1320 There was nevertheless a rising trend in the admission to the attorneys’
profession of coloured and African applicants, although the private legal profession was still dominated
by white attorneys and the uneven geographical distribution of legal services remained.1321
1311
See Chapter 8.
1312
Pruitt, LR (2006).
1313
Pruitt, LR (2006).
1314
Pruitt, LR (2006).
1315
Pruitt, LR (2006).
1316
Pruitt, LR (2006).
1317
Godfrey, S & Midgley, R (2008).
1318
1319
1320
1321
225
The Centre for Applied Legal Studies (CALS) observed that the racial and gender composition in the
senior ranks of the profession continues to display a marked bias towards white males.1322 CALS noted
‘a marked absence of diversity on the basis of race, gender and other marginalising characteristics’.1323
However, the investigation found that the Constitutional Court over the past 20 years led the
transformation in respect of race. The majority of judges are black and two are white. Yet the
transformation in respect of gender is very slow as two female Constitutional Court judges served in
1994 and the numbers were the same in 2014.1324 CALS reported that black women in particular face
a range of barriers in their careers, namely:
…‘shortage of jobs and few connections, offers from the corporate sector that cannot
be matched by the legal profession, cultural alienation, bias based on the historical roles
of black women, racism, sexual harassment, Briefing patterns, behaviour based on
gender roles, lack of child care facilities and the trail blazer phenomenon’.1325
CALS also reported on the dearth of literature on other sub-sectors of the legal profession, namely
magistracy, prosecutors, other state lawyers, legal academics and paralegal practitioners.
In addition to the above, the Key Principles of the Legal Practice Act1326 noted a scarcity of skills in
certain areas of the law such as commercial law, constitutional law and interpretation among black
practitioners, which contributes to the skewed racial demographics in the legal profession.1327 These
prevailing conditions informed the Legal Practice Act.
The Draft Report on Research Findings on the Distribution of Legal Work in the Legal Profession in
South Africa1328 highlights the contentious issue of the persistence of race and gender bias on the part
of government departments and state owned enterprises (SOEs) when briefing the legal profession.
Although the investigation shows that there is evidence of efforts on the part of these institutions to
alter the apartheid era briefing patterns, in many instances it is confined to only a few black advocates
and attorney firms.1329 The gender imbalance in respect of these briefing patterns also remains.1330 It
1322
1323
1324
1325
1326
Department of Justice and Correctional Services, “Key Principles Underpinning the Transformation of the Legal
Professon”, available at: Key Principles of the Legal Practice Bill http://www.lssa.org.za. (accessed 22 June 2015)
1327
Key Principles of the Legal Practice Bill. p. 2.
1328
Phooko, MR, Distribution of Legal Work, (2016) South Africa: Law Society of South Africa.
1329
Phooko, MR (2016) p. 1–3.
1330
Phooko, MR (2016).
226
is therefore clear that 16 years down the line, the beneficiaries of the legal reforms in the legal profession
are few and that prejudices in respect of race and gender still persist in the briefing patterns.
The Legal Practice Bill 2012 was the first in a series of drafts to make specific reference to
transformation in its long title.1331 This long title was adopted verbatim when the Legal Practice Act
was enacted. The Legal Practice Act is intended, among others, to provide a statutory framework for
the transformation and restructuring of the legal profession under a single governing body, bringing it
in alignment with the Constitution, ensure that it reflects the demographics of the country and remove
any unnecessary and artificial impediments to entry into the profession. The preamble to the Legal
Practice Act specifically notes the lack of representivity of the narrow legal profession and the limited
opportunities for entry.1332
One of the objects of the Legal Practice Council is to, ‘promote access to the legal profession, in pursuit
of a legal profession that broadly reflects the demographics of the Republic;’ The focus of
transformation, therefore, is in essence on achieving a racial and gender balance in the narrow legal
profession. No consideration is given to the paralegal practitioner and a broader transformation agenda
and the Act thus falls short of the Justice Vision 2000 in providing access to justice. The underlying
assumption is that, by achieving numerical targets in respect of gender and race, this will automatically
translate to greater access to justice for the marginalised and the poor and lead to social transformation.
The literature shows, that this premise, empirically untested though it may be, is indeed not correct.
1331
The long title reads, ‘To provide a legislative framework for the transformation and restructuring of the legal
profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that
broadly reflects the diversity and
demographics of the Republic;’
1332
The preamble to the Legal Practice Act reads,
AND BEARING IN MIND THAT—
• the legal profession is regulated by different laws which apply in different parts of the Republic and, as a
result thereof, is fragmented and divided;
• access to legal services is not a reality for most South Africans;
• the legal profession is not broadly representative of the demographics of South Africa;
• opportunities for entry into the legal profession are restricted in terms of the current legislative framework;
AND IN ORDER TO—
• provide a legislative framework for the transformation and restructuring of the legal profession into a
profession which is broadly representative of the Republic’s demographics under a single regulatory body;
• ensure that the values underpinning the Constitution are embraced and that the rule of law is upheld;
• ensure that legal services are accessible;
• regulate the legal profession, in the public interest, by means of a single statute;
• remove any unnecessary or artificial barriers for entry into the legal profession;
• strengthen the independence of the legal profession; and
• ensure the accountability of the legal profession to the public.
227
The uneven geographical distribution of legal services
The Transformation of the Legal Profession: Discussion Paper reported that the distribution of lawyers
who rendered a service to the public at the time was geographically skewed. Most of them ran practices
in the urban areas, rendered a service to business entities and those who could afford their services.1333
Attorneys who rendered a service in the rural areas were mostly white, male and Afrikaans speaking
and they in essence rendered a service to white farmers and local businesses.1334 Townships and rural
settlements were hopelessly under serviced and the few attorneys that rendered a service there had poor
resources.1335
The increase in law graduates and admission into the profession did not translate into an adjustment of
the uneven geographical distribution of law professionals in the country. In the Key Principles it was
acknowledged that rural areas and historically black areas remain underserviced by legal
practitioners.1336 The shortage of lawyers in the rural areas was noted by the Sector Education and
Training Authority as well as the Scare and Critical Skills Report: Law Professionals. 1337 The Legal
Services Charter also highlighted the challenge in delivering legal services to these communities. The
Charter stated that, ‘the distribution of legal practitioners, particularly in the rural and historically black
communities continues to affect the access of these communities to legal services adversely’.1338 It is
unlikely that these conditions will change without the systematic deployment of community-based
paralegal services.
8.4.6. The cost of legal services
Legal services, when viewed as a commodity, have consumers and producers and are subject to demand
and supply. Although the essence of this dissertation militates against commoditising legal services,
this terminology is necessitated by the reality of the marketplace. There is a socio-economic rationale
behind controlling the cost of legal services in the country and the cold facts thereof do not always
feature in the debates on the issue.
1333
Department of Justice and Constitutional Development, Transformation of the Legal Profession: Discussion
Paper, (1999) .
1334
Department of Justice and Constitutional Development (1999).
1335
1336
1337
Godfrey, S & Midgley, R (2008); Safety and Security Sectoral Education and Training Authority, Sector Skills
Plan 2011-2016, (2011) p. 23.
1338
Chapter 2 para 2.2. (ii).
228
The dire socio-economic conditions in the country dictate that the transformation of any/our/a legal
culture has to result in economic transformation of the poor. The National Credit Regulator (NCR)
reported that South African consumers owed credit providers R1,55 trillion as at March 2014,
amounting to an increase in the debtor’s book of 6,9%.1339 The demand for new credit has increased by
3.24%.1340 Furthermore, although the number of consumers with impaired credit records by March
2014 decreased from the previous quarter, it totalled 9,93 million.1341 The number of impaired accounts
has increased by 962,000 during the 2013/2014 financial year.1342
Statistics South Africa1343 reported that demand for social welfare has tripled which makes social
assistance by government unsustainable. The General Household Survey1344 shows that dependence on
welfare continues to increase as 42,3% of households in South Africa receive social grants. Access to
food has improved since 2002 but it has remained static since 2011.1345 Although the percentage of
individuals aged 20 years and older who attained Grade 12 as their highest level of education has
increased to 28,7%, the low levels of literacy among this group remains a cause for concern.1346 An
official unemployment rate of 42,3% was reported for the fourth quarter of 20141347 and an expanded
unemployment rate of 34,6% was recorded for the same period.1348 Although this has been reduced to
26.5% in 2016, the unemployment rate remains high.1349
Second generation human rights, in the form of socio-economic rights; acquire different proportions in
South Africa when viewed within the context of rampant poverty, unemployment, the effects of HIV
and inequality. The fact that poverty still has a distinctly racial bias is of particular concern, although
inequality seemed to have shifted from race to class.1350 Poor levels of literacy cement the legal isolation
of the poor by presenting an insurmountable barrier both to legal literacy and access to justice. The
above statistics lend credibility to the claim by the Foundation for Human Rights that poverty,
unemployment and inequality remain the primary threats to South Africa’s democracy, cementing the
vulnerability of the poor and the marginalised; yet, the reforms within the legal profession focus on the
narrow legal profession with scant regard for the legal empowerment of the poor. This is the area in
1339
National Credit Regulator (2015) p. 34.
1340
1341
National Credit Regulator (2015) p. 37.
1342
1343
Statistics South Africa, General Household Survey 2007, (2011) .
1344
Statistics South Africa, General Household Survey 2014, (2015) p. 11.
1345
Statistics South Africa (2015) p. 14.
1346
Statistics South Africa (2015) p. 11.
1347
Statistics South Africa, Quarterly Labour Force Survey: Quarter 4, (2014) Pretoria, South Africa.
1348
Statistics South Africa (2014). xiii
1349
Statistics South Africa (2017).
1350
Statistics South Africa (2014).
229
which paralegal practitioners are most needed. Despite the aforementioned, the potential role that the
paralegal practitioners can play in improving access to justice has, to date, been largely ignored. The
efforts to transform the legal profession, in part, resembles that of legal missionaries as the assumption
is that the solutions lie outside of the very communities that the law is supposed to empower.1351
No national survey of household needs of legal services has been conducted in the country. However,
there appears to be consensus that legal services are simply unaffordable for the majority of citizens in
South Africa.1352 The Transformation of the Legal Profession: Discussion Paper cited the cost of legal
services as one of the issues to be addressed during the transformation of the legal profession. It was
noted that the broad middle class is not able to afford legal services and the indigent are not sufficiently
serviced by legal practitioners.1353
Justice Vision 2000 responded by focusing on legal fees and draws no direct link between the provision
of paralegal services and its potential for reducing the cost of legal services. However, it emphasises
the need for efficiency and cost effectiveness.1354
8.4.6.1. Justice Vision 2000
Justice Vision 2000 recommended that, ‘facilitative measures that will ensure affordable access to the
justice machinery and related institutions need to be given priority in the planning of [the]
transformation [of the administration of justice]’.1355 One of the proposed strategies to increase access
to justice was controlling the fee structures of the narrow legal profession. Not much has changed since
the adoption of Justice Vision 2000. Afrimap noted that:
‘… despite efforts to introduce small claims procedures, an active set of organisations

involved in public-interest litigation and the expanding mandate of the Legal Aid Board
to include civil cases, the financial cost of legal proceedings remains a significant
barrier to realising equal access to justice. In particular, the cost of legal professional
services remains unaffordable to the average South African…’.1356
1351
Golub, S (2003).
Dunlap, B (2014).
1352
1353
At para 3.4
1354
Justice (2000) p. 1.
1355
Justice (2000).
1356
230
Afrimap concluded that ‘the average black household would take a week’s income to afford an hour-
long consultation with an attorney’.1357 The cost of legal services was also raised in the Key Principles
when it acknowledged the unaffordability of legal services for poor communities, especially in civil
matters and limited state-funded legal assistance provided in this area.1358
The table below reflects the average fees for legal services rendered by the narrow legal profession and,
as Klaaren pointed out, it is substantial.1359 This is compounded by the underfunding of Legal Aid South
Africa resulting in the unavailability of legal aid for most poor civil litigants and the exclusion of the
‘middle gap’.1360 Access to civil justice, even today, is therefore primarily available to those who can
afford it.
Moreover, the conflation of primary and secondary legal services, the failure to unbundle them in spite
of international precedent and the lack of recognition of other producers of legal services, such as
paralegal practitioners, contribute to the cost. The monopoly of the narrow legal profession over legal
services in the country therefore is a contributing factor to the cost of these services and needs to be
addressed. The Competition Commission expressed similar views on the Legal Practice Bill, although
not in so many words. It stated that the Bill does not address access to the profession or access to
justice.1361 It disparaged the establishment of the Legal Practice Council for legitimising cartel-like
conduct, lamented uncapped contingency fees, decried the over-restrictive reserved work provision and
proposed that the Minister designate categories of work that could be done by ‘non-legal
practitioners’.1362 The Legal Practice Act has since been enacted and a number of provisions dealing
with cost will now be considered.
1357
1358
1359
Legal w/ 5 years’ w/10 years’

In training Newly qualified Senior
Practitioner experience experience
Advocate n/a R800/hr R1200/hr R2000/hr R35000/R40000+/day
Attorney
R900/hr R1100/hr R2300/hr R3000/hr R4000/hr
(Corporate)
Attorney R600-900/ R700-
R400/hr R500/hr R700-1200/hr
(solo/small) hr 1100/hr
Source: Klaaren, J, The Cost of Justice, (2014) Johannesburg, South Africa.
1360
The middle gap is the category of persons who do not qualify for legal aid but cannot afford an attorney.
1361
Hawkey, K, 'Written submissions on the Legal Practice Bill', (2013), April (529), De Rebus, pp. 38–48. p. 23.
1362
Hawkey, K (2013).
231
8.4.6.2. The Legal Practice Act 2014
It must be stated in advance that none of these provisions relate to the paralegal practitioners and how
they can contribute to reducing the cost of legal services, neither do they refer to the unbundling of legal
services, which in the author’s view is a pre-requisite for the lowering of these costs and the involvement
of the paralegal practitioner. This discussion will therefore not embark on an analysis of the relevant
provisions but merely state them briefly.
The Legal Practice Act makes specific provision for advocates and attorneys to practice for their own
account and to charge a fee for their services. Currently fee tariffs are determined by the Rules Board
for Courts of Law.1363 The Legal Practice Act further allows for flexibility in respect of these tariffs by
agreement between the client and the practitioner.1364 The Legal Practice Act tasks the South African
Law Reform Commission with investigating, reporting and making recommendations to the Minister
on a range of matters related to fees.1365 It further requires practitioners to provide clients with a ‘cost
estimate notice’.1366
The Legal Practice Act further provides for community service as a pre-condition for continued
enrolment as a legal practitioner1367 and includes it as a component of the practical vocational training
of candidate legal practitioners.1368 The Law Society of South Africa (LSSA) has indicated that each
of their 21 000 members is obliged to render 24 hours of pro bono services per year and the General
Council of the Bar (GCB) confirmed that their members are committed to 20 hours.1369 Law firms are
also voluntarily providing these services free of charge and/or at low rates to the indigent and have
established pro bono and public interest departments. This is a positive development in ensuring some
level of service by the narrow legal profession to the poor and the indigent.
However, 20 to 24 hours of legal service by practitioners is not going to provide in all the legal needs
of 54 million South Africans of which the overwhelming majority are poor. Neither will the compulsory
community service by law interns ensure quality and competent service to these communities,
especially in the townships and rural areas. This calls for an integrated and coordinated approach by
1363
Rules Board for Courts of Law Act, 107 of 1985.
1364
Section 35(3).
1365
Section 35(4).
1366
Section 35(7).
1367
Section 29(1)(b).
1368
Section 29(1)(a).
1369
Hawkey, K (2013); General Council of the Bar of South Africa, “The GCB’s submission on the 2012 Legal
Practice Bill, to the Parliamentary Portfolio Committee”, (2013), available at: Politicsweb
http://www.politicsweb.co.za/documents/the-gcbs-submission-on-the-legal-practice-bill. (accessed 12 October 2016)
232
all practitioners and service providers. However, the lack of recognition given to the paralegal
practitioner hampers this integrated approach and may be, in part, due to the resistance from the narrow
legal profession.
8.5. RESISTANCE TO A PARALEGAL PROFESSION
AfriMAP reported, ‘…strong differences within the legal profession on a range of matters, including
the recognition of paralegal practice…’.1370 This suggests that the narrow legal profession has been one
of the stumbling blocks in the recognition of paralegal practitioners in the country. Benjamin has
expressed a similar view, reporting reluctance on the part of the narrow legal profession to include
paralegal practitioners in the regulatory framework of the narrow legal profession, citing concerns over
regulation, professional practice and education and training.1371 Very little reference is made to the
paralegal practitioner in commentary by the General Bar Council of South Africa and the Law Society
of South Africa on policy reform in the legal profession. This practitioner has, for all intents and
purposes, been ignored by the profession but for the protection of the ‘scope of practice’ of the
attorney’s profession.
The Task Team Proposal on the Legal Practice Bill recommended, for example, that the Minister should
be empowered to grant registered paralegals limited right of appearance in the courts.1372 However this
was opposed by the attorney’s profession, who was represented on this Task Team. The report states
that,
…[t]he majority of the Task Team propose that the Minister should be empowered to
issue regulations with the consent of the Council, authorising registered paralegal
practitioners to appear in specified courts, in specified areas, and in respect of specified
matters. The purpose … to enable poor people to obtain some representation where
they would otherwise be unrepresented … where the Minister and the Council are
satisfied that a registered paralegal can provide adequate and competent representation.
The LSSA (Law Society of South Africa)/ (BLA (Black Lawyers Association)/ (NADEL
(National Association of Democratic Lawyers) representatives oppose this
proposal’.1373
1370
1371
Benjamin, S, Joining Forces for the Poor: Alliance-building for social justice in South Africa and the story of the
National Alliance for the Development of Community Advice Offices, (2012) South Africa: The Atlantic
Philanthropies.
1372
Budlender, G, Task Team on the Draft Legal Practice Bill, (2002) South Africa: Department of Justice and
Constitutional Development.
1373
Budlender, G (2002). (own emphasis added)
233
In so doing, the narrow legal profession failed to acknowledge that a plural legal system exists in the
country that militates against the narrow application of the rule of law and a lawyer-centred approach
to access to justice. This opposition delayed access to civil justice for the marginalised and the poor
indefinitely.
There is further evidence of the opposition of the narrow legal profession to the proposed transformation
of the administration of justice.1374 The Strategic Goals for the legal profession recommended by Justice
Vision 2000 ultimately were reduced to Key Principles Underpinning the Transformation of the Legal
Profession that formed the basis for consultation with the narrow legal profession. The Minister of
Justice at the time considered this to provide ‘a platform for constructive engagement’ with the
profession. In the document it was acknowledged that the impasse with the legal profession lasted 12
years and that the ‘stalemate …had stifled progress in the finalisation of the Legal Practice Bill.1375
Principle XV recommended that paralegals should be regulated by separate legislation. The narrow
legal profession thus prioritised their own regulation and addressing the urgent need for meeting the
primary legal needs of the overwhelming majority of citizens in the country was thus relegated to an
indeterminate time in the future.
The above situation is not unique to South Africa. A comparative study of civil process reform in 13
1376
developed and developing countries was conducted. The study concluded that the opposition by the
organised bar was the one recurring factor that hampered efforts to reform justice systems in both
common and civil law countries.1377 The fact that paralegals are still unrecognised, unregulated and
that there is very little investment from government and the narrow legal profession in the sector, bear
testimony to this resistance.
Missing theory hampers the understanding of stakeholders as to their respective roles in the
transformation process causing delays in implementation which results in justice at best being delayed
and at worst being missing. Neither the narrow legal profession nor the State offers any exposition of
the theoretical framework of their relationship. It could be argued that in a constitutional democracy
such as South Africa, a trusteeship model of the legal profession exists. Luban describes this model as
follows:
1374
Key Principles of the Legal Practice Bill.
1375
Key Principles of the Legal Practice Bill. pp 2-3.
1376
Zuckerman, AS (ed) , Civil Justice in Crisis: Comparative Perspectives of Civil Procedure, (2000) Oxford, UK:
Oxford University Press.
1377
Oxner, SE, The Many Facets of Training, (2000).
234
‘In effect, lawyers are like trustees- agents designated by a principal [collective
political community] to administer a good [the law] that the principal has created for
the benefit of a third party. The community compensates lawyers for their efforts as
trustees of the law by granting them an exclusive license to charge money for
dispensing legal representation, as well as by moulding the law to the special skills and
training of lawyers, in effect giving lawyers an oligopoly on the provision of legal
services’.1378
Lawyers, therefore, have a fiduciary duty to enhance access to justice and protect human rights. The
role of the political community in a democracy is considered to be mainly constitutive as this
community creates the law that the lawyer dispenses. The political community is therefore justified in
attaching reasonable conditions to the practice of law as it is supposed to benefit all the citizens of the
community.1379 The requirement to render pro bono service to indigent communities is therefore not
unreasonable and can be traced back through the centuries.1380
It is thus unclear on what basis the narrow legal profession can claim sole privilege to dispense the law
and deny the State the right to grant other trustees, for example paralegal practitioners, the same
privilege where it is unable and/or unwilling to do so. Opposition to the recognition of the paralegal
practitioner by the narrow legal profession is thus in conflict with its own fiduciary duty and the State’s
constitutional obligation to provide the necessary adjudicating mechanisms and human resources to
ensure access to justice. As discussed in the preceding chapters, the State’s obligation stems from its
social contract with its citizens and the Constitution, the supreme law of the land.
Golub cautions that the narrow legal profession is not entirely an objective party to the transformation
process. He advises that they may lack development experience, have little insight into the failings of
the legal system and fail to recognise that they are part of the problem. In a country such as South
Africa, where the disparities run deep and wide, we cannot tolerate self-serving bar associations that
‘limit access to justice, work against social and economic equality, or subordinate the interests of the
poor to those of attorneys and their (fee paying) clients.’1381 On the other hand, it must be stated that
the public needs protection from a violation of their right to a fair hearing, which requires adequate and
competent representation. Hodgson noted that,
1378
Luban, D (2014).
1379
Luban, D (2014).
1380
See Chapter 2.
1381
Golub, S (2006).
235
…‘[a] lawyer-led and law(yer)-centric approach to the transformation of legal culture
[in South Africa] has resulted in an incomplete vision of what this entails but also what
creating a culture of human rights and constitutionalism requires’.1382
It therefore stands to reason that primary legal services and the role of the paralegal practitioner in
rendering these services in the country would not feature high on the agenda of bar associations that
are, for the most part, geographically, economically, socially and culturally removed from the daily
struggles of the majority of citizens in the country. Ordinary citizens can, for example, simply not relate
to the advocate’s profession when it motivates for its separate and distinct existence based on, among
others, ‘influences and traditions at the Bar which never died’.1383 These traditions are described first
as:
‘…thorough scholarship, pursuit of forensic excellence, capacity for rational thought,

intense intellectual energy and unremitting discipline which barristers have always
been expected to apply in the discharge of their briefs. There must be few endeavours
in all civilization which can compare to the totality of commitment and the punctilious
regard for detail which a competent and conscientious advocate harnesses in support
of his or her case’.1384
The second tradition cited by the General Council of the Bar relates to
‘…a fierce independence and an uncompromising standard of intellectual integrity and

capacity for objectivity which informs the best at the Bar. It was sometimes displayed
with a towering magnificence, and with it came a depth of courage and a willingness
to champion causes and litigants often unpopular in the public perception.’1385
This ‘magnificence’ comes at a price and the above exposition begs the question, at whose disposal is
it and how can mere mortals such as the marginalised and the poor communities gain access to it?
Furthermore, where does legal empowerment of these communities feature in this grandiose mystique
that is the advocates’ profession? The narrow legal profession subscribes to the no dominance principle
to ensure that neither advocates nor attorneys dominate the profession. The restriction of paralegal
1382
Hodgson, TF (2015).
1383
General Council of the Bar of South Africa (2013), para 24.
1384
General Council of the Bar of South Africa (2013).
1385
General Council of the Bar of South Africa (2013).
236
services by the narrow legal profession must be viewed with a jaundiced eye lest the no dominance
principle fails to be applied to a paralegal profession.
The reluctance on the part of the narrow legal profession to recognise the paralegal practitioner as a
member of the legal profession can be reduced to two motives. The first is the desire to protect their
‘scope of practice’, in other words, prevent professional encroachment and the second is the need to
protect the public from the unauthorised practice of the law. These two motives are interlinked and have
to be thoroughly examined but the authenticity thereof will not be resolved here. In accepting either
motive, the State must remain mindful of the self-interest of the profession, the rationale for the
transformation, its obligation in terms of the social contract with its citizens and its legal obligation
under the Constitution to provide access to justice. Furthermore, the community-based paralegal
practitioner, in particular, is already discharging this duty on behalf of the State subjected to its limited
resources and driven by the inability of the narrow legal profession to meet the primary legal needs of
the citizen of the country.
8.6. CONCLUSION
Policy reform in the legal profession falls short of Justice Vision 2000, fails the paralegal profession
and does not address the justice gap in the country comprehensively. There is the absence of a
theoretical framework for the transformation of the administration of justice, in which the
transformation of the legal profession forms an integral part. This shortcoming affects the
transformation of the legal profession. Firstly, the nature of the relationship between the State and the
narrow legal profession is not clearly articulated, resulting in a lack of understanding of the role of all
stakeholders in the transformation process. Secondly, the lack of understanding of the role of the
various stakeholders in the transformation of the legal profession gave rise to an incomplete vision of
this transformation.
This lack of understanding and the incomplete vision is reflected in policy reform in a number of ways.
There is a lack of recognition by the legal profession that it is a contributor to the lack of access to
justice and the legal disempowerment of the poor and the marginalised, resulting in the transformation
of the legal culture being lawyer-centred and lawyer-driven. Bar associations remain for the most part
geographically, economically, socially and culturally disconnected from the daily struggles of these
communities. Barriers to access to justice are therefore not addressed comprehensively. Skewed
briefing patterns and racial and gender demographics at the bar thus take precedence over the broader,
constitutionally endorsed, social transformation agenda.
237
Moreover, there is resistance to alternative or complementary paradigms such as paralegal practice. The
narrow definition of the legal profession is therefore retained, which refers to admitted attorneys and
advocates only. The recognition and regulation of the paralegal practitioner is relegated to a time in the
distant future, perpetuating the dependence of community-based paralegal services on donor funding
and volunteerism, compromising the sustainability of this essential service.
Furthermore, the much lamented legal education and training of law graduates is addressed in isolation
of the macro policy framework of higher education in the country. There is no consideration of
paralegal education and training as a means to strengthen and deepen legal education through seamless
articulation. This contributes to systemic blockages caused by a lack of synergy between the various
post-school sub-systems.
Policy reform therefore does not encourage a ‘legal culture shaped by society and societal culture
shaped by law’, making improved access to justice, especially in civil matters, a casualty.
The reliance on community service by legal practitioners and law interns will not address the unmet
primary legal needs of the citizens in the country; neither does it constitute a comprehensive strategy
for reducing the cost of secondary legal services which are out of reach for the majority of citizens. It
also does not address the unbundling of legal services which in this study is considered to be a pre-
requisite for the lowering of these costs and the involvement of the paralegal. The uneven geographical
distribution of legal services in the rural areas and historically black areas has not been addressed
adequately and these areas will remain underserviced by legal practitioners without the systematic
deployment of paralegal services.
The absence of a philosophical and theoretical framework and its resultant definitional vacuum play no
small part in the shortcomings in the policy reforms. This study therefore offers a benchmark
description for the transformation of the legal profession drawn from the goals and objectives of key
policy documents. The transformation of the legal profession in South Africa reflects characteristics of
a symbiotic model of transformation and could be described as an evolutionary process of
reconstruction of the existing regulatory framework in order to guarantee access to a reformed
institutional framework that gives effect to the values of a democratic and constitutional order centred
on the emancipation of its citizens.
In addition, this study argues that a constitutional democratic order grants practitioners of the law
trusteeship of the law. This trusteeship model of the legal profession allows the State to set reasonable
conditions for the practice of the law in line with its obligation to its citizens and its duty under the
Constitution.
238
A true commitment to the legal empowerment of the poor and the transformation of the legal profession
requires an effort on the part of the members of the narrow legal profession to render themselves less
indispensable, less superior and those who have managed to fortify themselves in the privileged
existence of the four c’s of social status (castle, cash, clothes and car), less affluent. Maru noted that
‘(w)e would underestimate the power of paralegalism …if we were to conceive of paralegals only as
good substitutes in the event that lawyers are not available’.1386 Having identified the shortcomings in
the legal reforms of the legal profession Chapter 9 will proceed to examine the community-based
paralegal landscape in South Africa and the paralegal ‘profession’ in a number of foreign jurisdictions.
1386
Maru, V (2006) p. 470.
239
CHAPTER 9
A COMMUNITY-BASED PARALEGAL PROFESSION IN SOUTH AFRICA
9.1. INTRODUCTION
The preceding chapters examined the existing human rights framework to determine whether it creates
scope for the community-based paralegal to enchance access to procedural justice in South Africa.
Having concluded that this framework both restricts and enables community-based paralegal practice,
the focus turns to the community-based paralegal ‘profession’ in the country. This chapter tracks the
evolution of community-based paralegal practice in South Africa and examines paralegal practice in a
selection of foreign jurisdictions. The purpose of this examination is first, to determine the key features
that currently characterise a community-based paralegal profession in South Africa.
Secondly, community-based paralegal practice in South Africa appears to be more readily recognised
beyond the country’s borders.1387 Despite South Africa, arguably, having led paralegal development
within the African continent, there are lessons to be learned from other jurisdictions. The magnitude of
a comprehensive comparative analysis would take this dissertation beyond its scope; hence, this
investigation focuses on a brief evaluation of paralegal practice in a selection of countries against the
conventional features of a profession. These features include, governance, regulation, certification,
education and training and scope of practice.
South Africa is ranked as the second largest economy on the African continent.1388 Due to the vast
economic disparities in society, it displays features that compare with countries on both ends of the
economic divide. An examination of paralegal practice in a selection of countries on both ends of this
divide provides insight into the possibilities of developing a paralegal ‘profession’ in the country. The
United States of America and England1389 represent the more economically developed countries while
Mozambique and Sierra Leone1390 represent the economically developing countries.1391
1387
Tanner, C & Bicchieri, M (2014).
1388
Africa Ranker, “Top 10 Most Developed African Countries”, (2016), available at: Africa Ranking
http://www.africaranking.com/most-developed-african-countries/. (accessed 23 February 2017).
1389
The United States of America and the United Kingdom are currently ranked first and fourth respectively on the
Statistics Times List of Countries by Projected GDP.
1390
Mozambique and Sierra Leone are currently ranked 130 and 156 respectively on the Statistics Times List of
Countries by Projected GDP.
1391
“List of Countries by Projected GDP”, (2017), available at: Statistics Times
http://statisticstimes.com/economy/countries-by-projected-gdp.php. (accessed 12 May 2017)
240
9.2. THE COMMUNITY-BASED PARALEGAL IN SOUTH AFRICA
There is a dearth of available information on paralegal services in South Africa. This lack of
information, partly, contributed to community-based paralegals not being recognised, irrespective of
the fact that they have been the advance guard of civil justice for the poor and marginalised since the
1930’s. ‘Empirical’ evidence, which relates to community-based paralegals, has surfaced relatively
recently and shows that these paralegals ‘regularly operate beyond the capacity, locality or comfort of
the legal profession’.1392 Their ‘practice’ is characterised by a ‘court room’ that does not necessarily
consist of four walls, while many of them received their education and training in advocacy and human
rights protection in the school of life rather than through formal legal education. Paralegal practice has
nevertheless provided the overwhelming majority of community-based paralegal practitioners with the
attributes that the new democratic order demands from entrants into the legal profession, namely, among
others, advocacy and active citizenship, emotional literacy, social intelligence and a human rights-based
approach to access to justice.1393
The lack of recognition of the paralegal in general in South Africa could be attributed to a number of
factors. A comprehensive definition of a paralegal is absent.1394 There is a lack of comprehensive
empirical research on the role of the paralegal in South Africa. It is mostly seen as an adjunct to an
attorney, which does not require specialist training, but for the superficial aspects of the law and
administration. The service has not been professionalised to date; in other words, no standards, which
relate to education and training, scope of practice, conduct or certification have been set.
The limited number of studies, which have been conducted, nevertheless provides insight into the
development of community-based paralegals who continue to play a crucial role by providing access to
civil justice for the poor and marginalised in the country. The heterogeneous nature of the scope of
practice of this practitioner is reflected in the evolution of community-based paralegal services, pre-
and post-1994.
1392
Benjamin, S (2012).
Bodenstein, J, Interim Report on the State of Community-based Paralegal Advice Offices in South Africa, (2007)
Sweden: National Steering Committee Institute for Criminal Justice.
Davids, YD & Verwey, L, Towards a sustainable and effective CAO sector in South Africa: a cost-benefit and
qualitative analysis, (2014).
1393
Justice (2000).
1394
See Chapter 2.
241
The community-based paralegal in South Africa prior to 1994
The South African community-based paralegal emerged in response to the introduction of an apartheid
regime which was characterised by gross injustices, exclusion and brutal repression.1395 Members of the
community had a deep distrust of the legal system, as it was considered to form an integral part of the
extensive apartheid machinery through which the State enforced its discriminatory policies. Community
Advice Offices (CAOs) were established and formed the bases from which these communities could
rally against injustice perpetrated by the regime. The CAOs provided the only form of legal assistance
that most Black South Africans received at the time.
The Black Sash, a membership-based and membership-funded anti-apartheid volunteer activist

organisation that ultimately evolved into a registered non-profit organisation, was a staunch supporter
the CAOs.1396 The organisation established various CAOs and engaged in advocacy, public education
and protest action, monitored and recorded, among others, arrests, detentions and deaths and provided
free paralegal services, focussing on housing, unemployment, pensions, influx control and detention
without trial.1397 During the 1980s community leaders would establish CAOs in their own homes as the
apartheid machinery sprang into action and they would tackle, for example, farm evictions and forced
evictions that resulted from racial segregation.1398 The array of problems that Black people1399
experienced provided community-based paralegals with opportunities to acquire a range of skills,
including trauma counselling and resource procurement.1400
During the period of transition to a new democratic order,1401 the Black Sash shifted its focus to
monitoring CODESA1402 negotiations and through the CAO network, provided voter education in
preparation for the first democratic elections. The capacity of this CAO network and its community-
based paralegals to respond to the ever-changing socio-legal needs of society distinguishes this
practitioner from other legal practitioners.
1395
Benjamin, S (2012); Dugard, J & Drage, K (2013); Bodenstein, J (2007).
1396
Black Sash, “Our History: Standing for Human Rights”, (2014), available at: The Black Sash
https://www.blacksash.org.za/index.php/our-legacy/our-history. (accessed 15 April 2017).
1397
1398
1399
Communities were confronted with the threat of removal, breakdown of family structures, detention and
unemployment.
1400
1401
1990 - 1994
1402
The Convention for a Democratic South Africa (CODESA) negotiations preceded the transition from the pre-1994
regime to the new democratic order.
242
The community-based paralegal in South Africa post 1994
The introduction of a new democratic order presented new opportunities for the community-based
paralegal to facilitate access to justice for the poor and the marginalised. As the statutory framework of
apartheid was being dismantled, the structural barriers remained and in many instances the State failed
to deliver the most basic of legal services. The regulatory framework in the country was transformed in
alignment with the Constitution, and as people’s awareness of human rights increased, so did the
demand for legal information, advice, assistance and representation. In the face of various barriers,
which prevented access to this legal assistance, including geographical and financial barriers, the
community-based paralegal acquired a new role, namely, to translate the Bill of Rights into reality and
thus contribute to the social emancipation of the poor.1403
A profile of the users of community advice offices shows that community-based paralegals deal with
the most vulnerable communities. A substantial number of these users (48%) earn between R1001 and
R3000 per month, and the majority merely have secondary education (38%)1404 or no education at all
(34%).1405 Rural communities and townships remain segregated from more affluent suburbs. Poverty,
geographical location, gender and education levels ensure that South Africa remains a deeply segregated
society.1406 As a consequence, access to both procedural and substantive justice remains an aspiration
for the majority of citizens in the country. In the author’s view this is the most serious fault line in
contemporary South African society. Research, limited though it may be, shows that the community-
based paralegal is at the coalface thereof.1407
The community issues dealt with by these offices span a vast array of social and legal problems, and in
many instances the community-based paralegal practitioner had to take ongoing carriage of the
matter.1408
The Transformation of the Legal Profession: Discussion Paper acknowledged the role that paralegals
have played in delivering legal services to communities and noted the lack of recognition and regulation
1403
1404
Davids, YD & Verwey, L (2014) p. 8.
1405
Davids, YD & Verwey, L (2014).
1406
Bodenstein, J (2007); Davids, YD & Verwey, L (2014).
1407
Bodenstein, J (2007); Davids, YD & Verwey, L (2014).
1408
Davids, YD & Verwey, L (2014).
These include unemployment, housing-related matters, refugee and migrant community-related matters, youth social
challenges, high substance abuse, domestic violence, labour-related matters, poverty, general access to justice matters,
property hijackings, financial issues, gross violations of human rights, consumer rights issues, service delivery, health
issues and corruption.
243
of paralegals in South Africa. Justice Vision 2000 responded by linking the paralegal and legal aid to
the theme of ‘Access to Justice for All’. However, State-initiated policy reforms in the paralegal sector
have not resulted in the paralegal practice receiving formal recognition.
9.3. PARALEGAL POLICY REFORMS INITIATED BY THE STATE
To date, efforts on the part of the Department of Justice and Correctional Services, which is tasked with
giving effect to the recommended strategies for paralegals contained in Justice Vision 2000, are yet to
materialise. This is in spite of the fact that the Legal Services Charter expressly recognised community-
based paralegal services and committed itself to ‘devising and implementing measures’ to ensure
‘access to affordable legal services for all people in South Africa’, particularly those in marginalised,
poor and rural communities.1409
Justice Vision 2000
The first strategic goal, which was adopted under the theme of ‘Access to Justice for All’ was ‘making
legal advice and legal representation accessible to all who need it’.1410 The recommended strategies had
three areas of focus, namely legal aid, access to lawyers, and making better use of paralegal structures.
The strategies proposed for legal aid included evaluating the effectiveness of paralegal advice centres.
This would provide relevant information on the extent of the legal services that these advice centres
rendered, which, would inform policy in turn. The intention behind the recommended strategies for
making better use of paralegal structures was clear. The sector would be professionalised. The
recommendations were;
i) [de]veloping a definition of what a para-legal is;
ii) [c]ompiling manuals for training para-legals;
iii) [g]ranting paralegals limited audience rights in the courts; and
iv) [g]iving recognition to para-legals through standardisation, accreditation and

certification.1411
1409
Para1.1.1 v)
1410
Justice (2000) p. 16.
1411
Justice (2000) p. 16–17.
244
The first recommended strategy reveals the fundamental challenge with the recognition of the paralegal
at the time, namely, the absence of a universal definition for this practitioner. This is not unique to the
South African legal landscape.1412 Attempts to codify the existence of the ‘home’ of the community-
based paralegal, the community advice office (CAO), can also be traced back as far as the Task Team
Proposal on the Legal Practice Bill (2002).
Legal Practice Bill 2002 (Task Team Proposal)
The Legal Practice Bill 2002 made express reference to the accreditation of legal advice offices.1413 It
made provision for a legal entity registered as a non-profit organisation to apply for ‘accreditation to
render legal services or any specialised legal service as a legal advice office’. 1414 The criteria for
accreditation was detailed in clause 48(3)(a)-(h). The Bill allowed for a charging of a fee for services
that were rendered as determined by the Legal Practice Council,1415 the exemption from liability for any
loss suffered in rendering a service in good faith1416 and practitioner-client confidentiality.1417 No
reference to community-based advice offices has been made in subsequent drafts, nor is there any
reference to them in the Legal Practice Act. Principle XV of the Key Principles nevertheless recognises
other providers of legal services, including paralegals, and proposes that they should be regulated
through a ‘separate legislative measure’.
The Task Team Proposal recommended that the Minister should be empowered, in consultation with
the Legal Practice Council and the Paralegal Committee, to regulate the rendering of legal services to
the public by paralegals. It further recommended that the Minister, in consultation with the Chief
Justice, grant right of appearance to paralegals in court. It was, therefore, intended for the scope of
practice of the paralegal to include representation in a court of law subject to conditions determined by
the Minister. The link between the paralegal and access to justice was made clear, to ensure that litigants
are adequately and competently represented, where the interest of justice so requires. Clause 47 detailed
the scope of practice of the paralegal, which involves the full spectrum of legal services, namely
inform,1418 advise,1419 assist1420 and represent.1421
1412
See the discussions on the definition of a paralegal in Chapter 2.
1413
Clause 48.
1414
Clause 48(1).
1415
Clause 48(7).
1416
Clause 48(8).
1417
Clause 48(9).
1418
Clause 47(a) and (f).
1419
Clause 47(d) and (f).
1420
Clause 47(b).
1421
Clause 47(h).
245
The Task Team Proposal further set certain criteria for the qualifications of paralegals, combining
academic and vocational education and training. Specific reference was made to communication and
research skills. However, the Law Society of South Africa held its own views on the scope of practice
of the paralegal, as their version of the Legal Practice Bill reflects.
The Legal Practice Bill 2002 (LSSA)
The fact that the scope of practice of the paralegal constitutes the battleground between the attorney’s
profession and the paralegal ‘profession’ is apparent from clause 29(2) of the LSSA version of the Legal
Practice Bill. This clause proposed that the paralegal only practices under the supervision of a legal
practitioner, which is defined as an advocate or attorney, in a law clinic or voluntary association that is
accredited by the National Legal Practice Council, which was established by the statute. The National
Council could exempt a paralegal from this restriction. In the LSSA’s version of the Legal Practice Bill
the paralegal was precluded from practicing for his/her own account1422 and from rendering ‘a legal
service in expectation of a personal fee, commission, gain or reward’. LSSA’s intention was clear, any
paralegal would be prohibited from competing with attorneys in respect of fee paying clients regardless
of the nature of the service, whether the client could afford the services of an attorney and/or the limited
resources of the State. The exemption provided for in the Bill had little significance, as the composition
of the Council favoured the narrow legal profession by far.1423
The Bill further made provision for the qualification and training of the paralegal to be determined by
the Minister upon the advice of the same Council. Representation in a court of law was completely
absent from the scope of practice and was replaced by a screening function.1424 The intention on the part
of the narrow legal profession to exercise control over the paralegal ‘profession’ was thus clear.
The 2009 version of the Bill deferred the regulation of the paralegal to the Legal Practice Council,
which was tasked to submit proposals to the Minister, who would introduce the proposals for regulation
in Parliament.1425 The scant reference to the paralegal in the 2012 version of the Legal Practice Bill and
the Legal Practice Act, has already been noted.1426
1422
Clause 29(3)(a).
1423
The Council was supposed to comprise of twenty-four (24) legal practitioners (Clause 63(1)(a)), two (2) paralegals
(Clause 36(1)(b)), two (2) ministerial appointees (Clause 63(1)(d)), and the chairperson of the Council (Clause
63(1)(c)).
1424
Clause 12(2)(e) ‘understand the circumstances in which it is appropriate to refer matters to a legal practitioner’.
1425
Clause 53.
1426
See Chapter 8.
246
The Legal Aid South Africa Act (LASAA) expressly empowers the Legal Aid Board to employ
paralegals who can provide legal services, representation and advice at the expense of the State. These
paralegals operate under the supervision of and as an adjunct to an attorney. Community-based
paralegal practice, therefore, does not feature. Reform initiatives by the community-based paralegal
sector have overtaken the stalled efforts by the Department of Justice and Correctional Services.
9.4. REFORMS INITIATED BY THE COMMUNITY-BASED PARALEGAL SECTOR:

THE COMMUNITY ADVICE OFFICE DRAFT BILL
The community-based paralegal sector has shown remarkable resilience over decades. It has, for
example, established its own governance structures, seeking and coordinating training and pursuing
policy reform with the exclusive aid of donor funding and volunteerism. Initiatives by the community-
based paralegal sector to ensure the formal recognition of the community-based paralegal in South
Africa predate the Legal Practice Act.1427 These initiatives were largely unsuccessful.1428 Following the
relegation of paralegal matters to the Legal Practice Council, the Association of Community-Based
Advice Offices of South Africa (ACAOSA) has taken the initiative to propose what is currently entitled
the ‘Community Advice Office Draft Bill’ (CAO Draft Bill) which was submitted to the Department of
Justice and Correctional Services in 2016.1429 This is the most significant legislative development for
the community-based paralegal to date. Each of these developments is discussed below.
The CAO Draft Bill attempts to address the strategic goals and strategies for paralegals, which are
contained in Justice Vision 2000. It proposes a definition for the concept paralegal, as well as a
community-based paralegal,1430 codifies a governance structure for the community-based paralegal
sector, formalises the existence of the CAO and makes proposals for the certification, education and
training and scope of practice for paralegals.
It should be stated in advance that this CAO Draft Bill is in its embryonic stage and at the time when
this work was submitted, it had the status of a concept document, which contained a number of
proposals. It is the first attempt at codifying the practice of the community-based paralegal and, if the
Legal Practice Act serves as an example, it will pass through various stages of drafting before it is
accepted. Notwithstanding the title, this Draft Bill has the status of a discussion paper prior to
submission to the South African Law Reform Commission. The evolution of the governance structures
1427
See brief reference in Chapter 1.
1428
See Chapter 1.
1429
This document is in the possession of the author.
1430
See the discussion on the definition of the paralegal in Chapter 2.
247
of the community advice offices, the home of the community-based paralegal, was not without their
challenges, and the CAO Draft Bill is not without controversy.
Governance
The existing governance structure of the community-based paralegal evolved from the earlier Advice
Centres Association1431 that was replaced by the National Community-Based Paralegal Association
(NCBPA).1432 The latter constituted a network of nine (9) provincial paralegal associations that
represented regional CAO and paralegal structures. The purpose of the NCBPA was to organise the
community-based paralegal sector, raise funds for the sector, standardise the training and develop a
code of conduct and ethics for the paralegals in this sector.1433 The NCBPA also pursued government
support for recognition of paralegals to ensure the sector’s sustainability.
In 1999 the National Paralegal Institute was established as a project of the NCBPA. Its purpose was to
provide education and training for paralegals in the sector. However, the CAOs suffered a set-back
following the withdrawal of some donors owing to financial mismanagement in the sector, resulting in
the new government viewing the sector’s capacity with caution.1434 Despite this, the majority of advice
offices continued to function, giving new meaning to volunteerism. The importance of the service that
community-based paralegals rendered prompted a multi-stakeholder discussion1435 that resulted in a
National Steering Committee for Community-Based Paralegals and Advice Offices in South Africa
(NSC).1436 The NSC evolved into the National Alliance for the Development of Community-Based
Advice Offices (NADCAO), a non-profit organisation committed to the development of and
sustainability of CAOs. Its objectives are to:
- Strengthen the CAOs;
- Conceptualise and develop ideas for the advancement of CAOs and community-based
paralegals;
- Identify, influence and support initiatives and interventions that will ensure the sustainability
of the sector;
- Facilitate the provision of relevant support and development services;
1431
1986 -1993.
1432
1995-2005.
1433
Community Agency for Social Enquiry, Paralegals And Advice Office: Progress And Challenges In The
Development Of Access To Justice, (2000) CS Mott Foundation.
1434
Community Agency for Social Enquiry (2000).
1435
These included the CS Mott Foundation, ICJS –S, Black Sash Trust, Social Change Assistance Trust, Foundation
for Human Rights, Community Law and Rural Development Centre and the NCBPA.
1436
Community Agency for Social Enquiry.
248
- Mobilise resources in the context of a newly-defined model of sustainability; and
- Articulate the issues of the sector within an authoritative national source.1437
NADCAO facilitated the formation of a new membership organisation, which would serve as the
national voice for the CAO sector.1438 ACAOSA was launched. It is considered to be the ‘third rising’
of the CAO sector.1439 ACAOSA, with the aid of NADCAO, is advancing the cause of the sustainability
and capacity building of and policy reform in the sector.
ACAOSA submitted a concept document to the Department of Justice and Correctional Services in
2017 entitled the Community Advice Office Draft Bill (CAO Draft Bill). The CAO Draft Bill makes
provision for the establishment of a South African Community Advice Offices and Community-Based
Paralegals Council (‘the Council’).1440 The objects of this Council are to advance access to justice for
vulnerable communities, advance the development and sustainability of the sector and regulate CAOs
and community-based paralegals.1441 The composition of the Council, is mostly, is modelled on the
composition of the Legal Practice Council,1442 but adapted to the paralegal sector. However, the CAO
Draft Bill, unlike the Legal Practice Act, does not make provision in its composition for a member of
the academic fraternity.1443 The education and training of the community-based paralegal has been
neglected in the country and the regulation of this paralegal is intricately linked to education and training
in this reagrd. Education and training is a key component of any profession and is central to the
continued evolution of the paralegal sector. This omission is, therefore, unfortunate.
The CAO Draft Bill further makes provision for a representative from the Legal Practice Council to
serve on the paralegal Council and confines this representative to a member of the National Association
of Democratic Lawyers (NADEL) or the Black Lawyers Association (BLA). Given the fact that these
two organisations opposed the granting of the right of limited appearance in the courts to paralegals in
the negotiations which lead up to the enactment of the Legal Practice Act, the reasons for this
development is the subject of speculation.
1437
NADCAO, National Alliance for the Development of Community Advice Office - brochure, (2013).
1438
NADCAO (2013).
1439
NADCAO, “ACAOSA Launch: Official Press Release”, (2013), available at: http://nadcao.org.za/acaosa-launch-
official-press-release/. (accessed 6 September 2016).
1440
Clause 4 of the CAO Draft Bill.
1441
1442
Established in terms of section 4 of the Legal Practice Act (2014).
1443
249
The standardisation, accreditation and certification of the paralegal service in
South Africa
The CAO Draft Bill makes specific provision for a South African Community Advice Offices and
Community-Based Paralegal Council. One of the objects of the Council is to regulate CAOs and
community-based paralegals. The CAO Draft Bill empowers the Council to promulgate regulations
that provide for the standardisation of accreditation and training, as well as the certification of
community-based paralegals. It further sets out specific criteria for accreditation on a continuum.
The CAO Draft Bill recommends various levels of certification that ranges from Grade 0 to 3,1444 and
proposes that a Council should regulate accreditation and training, of the community-based
paralegal.1445 It is evident that the intention with this continuum of certification is to accommodate
paralegals without formal qualifications, but who have extensive experience as paralegals in the field.
Education and training
The community-based paralegal sector’s education and training has lagged behind mainly as a result of
the narrow legal profession’s monopoly over legal services in the country, and the lack of recognition
of the contribution of the paralegal in filling part of the justice gap in the country. A scan of the
programmes on offer for quasi-legal services in South Africa reveals a fragmented model, with most of
its education and training being too specialised1446 and/or falling outside of the National Qualifications
Framework1447 and few programmes certificated by the Higher Education Quality Committee
(HEQC)1448 or the Quality Council for Trades and Occupations (QCTO).1449 This does not provide the
requisite educational support for the professionalisation of the community-based paralegal sector. It is
fragmented and is focused either on legal administration or narrow areas of the law, namely, labour,
family and commercial law.1450 This in itself proves to be highly problematic for those who advocate
1444
Grade 0.
Grade 1.
Grade 2.
Grade 3.
1445
Clause 25.
1446
For example, the National Certificate in Family Law Practice and Law Enforcement: Sheriffing.
1447
FET colleges also offer certificates or diplomas that are certificated by the college only, for example, the Senior
Paralegal Diploma offered by the South African Paralegal School.
1448
The search on the SAQA website produced only 3 programmes accredited by the HEQC (accessed
31 August 2016).
1449
The search on the SAQA website produced only three paralegal programmes accredited by the QCTO (accessed
31 August 2016).
1450
SAQA ID 50023 [NQF 5]: National Diploma: Legal Interpreting [Credits 240, NQF 5]
SAQA ID: LP 64269, QL 57712 [NQF 4]: National Certificate: Law Enforcement: Sheriffing.
SAQA ID: QL 97228, LP 49597 [NQF 5]: National Certificate: Paralegal Practice [Credits 131, NQF 5]
SAQA ID: 50265 [NQF 4]: National Certificate: Family Law [Credits 150, NQF 4]
National Certificate in Paralegal Practice NQF 5 128 credits
250
for the professionalisation of the paralegal sector, as education is one of the key elements of a
profession.
Evidence of formal paralegal education and training is found in the prospectuses of various former
Further Education and Training (FET) colleges, which are now known as Technical Vocational
Education and Training (TVET) colleges1451 and the South African Qualifications Authority
database.1452 The focus thereof is in essence on training for legal secretaries or legal assistants to
lawyers, especially in commercial practice and the formal education and training of the community-
based paralegal has lagged behind dismally to its ‘commercial’ counterpart.1453 Formal paralegal
education thus reflects the same public/private divide of legal education in the narrow legal profession,
is lawyer-centric and focused on fee paying clients.
Comprehensive paralegal education to date was hampered by the lack of definition of the concept and
uncertainty as to its scope of practice and the resultant lack of recognition of this practitioner. Due to
the uniqueness of the community-based paralegal, most of its education and training is in-house.
Compared to the 250 accredited paralegal programmes in the United States, for example, this is wholly
insufficient to support the professionalisation of the paralegal sector.
Paralegal education and training assumed a different dimension when the Council on Higher Education
granted accreditation to the Unit for Applied Law at the Cape Peninsula University of Technology to
offer a Bachelor in Paralegal Studies degree. This degree was designed in consultation with NADCAO
and ACAOSA.
National Diploma in Paralegal Practice NQF 5 240 credits.

1451
These were established in terms of the Continuing Education and Training Act 16 of 2006 and some of their
qualifications offered are not accredited by the Quality Council for Trades and Occupations or the Council for Higher
Education which are reflected on the SAQA database.
1452
South African Qualifications Authority, “SAQA”, (2014), available at: http://www.saqa.org.za/index.php.
1453
The Diploma: Paralegal (240 SAQA credits; NQF level 6) has as its purpose ‘to provide qualifying learners with
the skills and knowledge necessary to become a competent paralegal’. However, it in essence prepares learners to
enter the market as legal assistants to a lawyer with the focus on commercial matters. The focus is therefore on Legal
Office Practice Management, Civil Litigation , Debt Collecting, Wills and Estates and Property Law and
Conveyancing
The National certificate: Paralegal Practice (131 SAQA credits; NQF level 5) has as its purpose ‘to prepare qualifying
learners for supervised practice as paralegal assistants in all sectors of the industry’ which includes community-based
paralegal advice offices, non-governmental organisations, public institutions, commercial institutions and private
practices. However, its core and fundamental components are focused on administrative support.
The Higher Certificate in Paralegal Studies in Commercial Practice (120 SAQA credits; NQF level 5) has as its
purpose to prepare those ‘who have an interest in a career as a paralegal practitioner’ for employment in ‘law firms,
sheriffs of the court, municipalities, law enforcement agencies, private companies, public institutions, credit bureaus,
estate agents, etc.’. The qualification title of the programme is self-explanatory.
251
The scope of practice of the community-based paralegal and the limited right of
appearance in the courts
The inability of LASA to meet the demand for justice, in general, and civil justice in particular, left a
gap which the community-based paralegal has helped to fill. Even in the area of criminal justice, the
role of the paralegal has shifted from monitoring the treatment of political prisoners to focussing on
violence against vulnerable communities such as women and children.1454 The diverse and flexible
scope of practice of these practitioners thus enabled them to carve out a unique space in the ‘legal
fraternity’.
Community-based paralegals initially supplemented the services of government departments such as

Health and Social Services1455 after 1994, but their roles have extended beyond these services. These
practitioners dealt with employment issues, consumer matters, family matters, farm worker matters,
issues related to small claims courts, and the Road Accident Fund.1456 They also engaged in community
education on a range of issues, including human rights education.1457 Community-based paralegals
contributed to community development by assisting with the registration of non-profit organisations,
drafting constitutions and funding proposals and informing communities about project management.1458
Those who benefitted the most from these efforts were vulnerable communities such as the youth and
women.1459 Community-based paralegals also performed a screening and referral function.1460 These
practitioners, therefore, attend to the full spectrum of primary legal services, as defined in Chapter 2.
The above exposition of the scope of practice of the community-based paralegal makes clause 23 of the
Advice Office Bill a rather strange development in the regulation of the community-based paralegal. It
proposes certain limitations related to the authorised practice as a community-based paralegal and reads;
‘[c]ommunity-based paralegals are not allowed to appear in any court or tribunal unless specifically
provided for in law’.
This particular clause is in all probability informed by a number of factors, which have mostly been
identified in the preceding discussions in this chapter. These include the current fragmented,
jurisprudentially superficial and narrowly focused education and training of the community-based
paralegal, the need to protect the public from unqualified practitioners, the importance of competent
1454
1455
Bodenstein, J (2007). Community-based paralegals also dealt with matters related to HIV Aids and welfare.
1456
Bodenstein, J (2007).
1457
1458
1459
1460
252
and quality legal representation, which is fundamental for a fair hearing, and the need to placate the
narrow legal profession by avoiding professional encroachment. Most of these concerns present sound
reasons for the limitation of the right of appearance of community-based paralegals. However, this
limitation is problematic for a number of reasons.
The first three concerns can easily be dispensed with by prescribing minimum standards for education
and training and adopting a code of ethics and conduct. Clause 24 of the CAO Draft Bill indicates that
certification should be granted on various levels, while the scope of practice will be determined by the
education and training of the paralegal, in accordance with international precedents.1461
In addition, ‘making legal advice and legal representation accessible to all who need it’, is the first
strategic goal proposed in Justice Vision 2000 under the theme ‘Access to Justice for All’. 1462 It has
been argued in this thesis that the State has a constitutional obligation to provide legal assistance in civil
matters to persons who are 18 years and older, if the interest of justice so requires. This includes legal
representation. LASA has acknowledged its inability to give effect to its obligation to provide legal
representation in civil matters to all who qualify under the current models of dispensing legal aid. Given
the acknowledgement by LASA, the State has to find alternative means of dispensing justice, and
making use of paralegals presents such an alternative.
Furthermore, the process of regulatory reform often manifests the same characteristics as ‘horse
trading’.1463 The CAO Bill acknowledges in its preamble that ‘access to legal services is not a reality
for most vulnerable South Africans’. However, legal representation by a paralegal in an appropriate
forum is restricted in advance. A negotiating party does not display shrewd negotiation skills in
commencing the ‘horse trading’ by making concessions in advance. The narrow legal profession is an
essential stakeholder but it is not the only stakeholder, hence its personal vested interest has to take
second place to the unmet legal needs of the overwhelming majority of citizens in the country.
Moreover, the first part of the purpose statement of the CAO Bill reads: ‘to give effect to the right of
access to justice under section 34 of the Constitution, particularly for marginalised and vulnerable
communities’. Chapter 6 states that the right to legal assistance, as defined in Chapter 2, is derived
from section 34 of the Constitution. Clause 23 contradicts the purpose statement of the CAO Draft Bill.
1461
See, for example, the reference to PPR certification in England above.
1462
Own emphasis added.
1463
Horse trading is defined as ‘negotiation accompanied by shrewd bargaining and reciprocal concessions’ and is
often used in a political context. (Merriam-Webster, “Horse Trade”, (2017), available at: Dictionary
https://www.merriam-webster.com/dictionary/horse+trade.(accessed 2 April 2017))
253
A consequence of this limitation of the scope of practice of the paralegal is that persons who qualify for
legal assistance at the expense of the State are even denied access to paralegal services. This raises the
question of the constitutionality of this limitation.
Adjudicating mechanisms vary in nature and complexity1464 and there are institutional reforms
underway such as the Traditional Courts Bill and regulatory reform in the lower courts. 1465 Access to
justice requires that adjudicating mechanisms are accessible to all. This implies that, where needed,
adequate and competent representation must be available to ensure meaningful access. Adjudicating
mechanisms, in general, are not accessible, especially to the poor and marginalised in civil matters.
Denying an unrepresented indigent litigant representation by an adequately qualified paralegal in an
appropriate forum may compromise the fairness of the proceedings and thus the affected person’s right
to procedural justice.
Any meaningful exposition around the scope of practice of the paralegal practitioner can only
materialise once the full spectrum of the need for legal services in the country has been researched and
definitional issues, which relate to the construct ‘paralegal’, have been settled.
The cost of legal services
The CAO Draft Bill proposes that no community-based paralegal may render a service to a fee paying
client1466 and criminalises this act by proposing a sentence and permanent suspension. 1467 It further
proposes that funding for these services should be obtained through a combination of donor and
government funding. The community-based paralegal service is thus confined to a pro bono service
and, in the absence of government and donor funding, this paralegal practioner is reduced to a volunteer.
In light of the importance of the service that this practitioner renders, it is not advisable to subject the
service to this level of restriction. It amounts to subjecting the right of access to justice for the poor and
the marginalised to chance, which defeats the purpose of the battle for the recognition of the service. It
is doubtful whether this provision would pass constitutional muster, as it may also constitute an
unreasonable restriction on the right to trade, occupation and profession, as well as the right of equality
before the law and equal protection and benefit of the law.
1464
See Chapter 7.
1465
See Chapter 7.
1466
Clause 27.
1467
Clause 37.
254
The preceding examination shows that there are a number of features that currently characterise
community-based paralegal practice in South Africa. A consideration of community-based paralegal
practice pre- and post 1994 reveals a fexible socio-legal service capable of responding to the changing
needs of society and the social environment. The current shortcomings of community-based paralegal
practitioners include, the lack of regulation, formal legal education and training and uncertainty around
their scope of practice. These features are not unique to South Africa as the ensuing examination of
paralegal practice in a selection of foreign jurisdictions will show. Proposed legal reforms in South
Africa contains features of a practice that is intended to span the full spectrum of primary legal services
(inform, advise, support and represent) as defined in Chapter 2. The ‘CAO Bill’ addresses the
shortcomings of the practice as identified above, although it may be subjected to a number of
constitutional challenges in its current form. An examination of paralegal practice in a selection of
economically developed and economically developing countries may assist South Africa in the process
of professionalising the community-based paralegal sector in the country.
9.5. THE PARALEGAL PROFESSION IN THE UNITED STATES OF AMERICA
Paralegalism in the USA was lawyer-driven and evolved following an increased need for access to
justice, which was borne from dramatic policy reform in areas such as housing and education, as well
as civil and political rights.1468 The legal fraternity responded to this increased need for access to legal
services on the part of all income groups, particularly amongst low-income groups by using non-
licensed employees to assist in legal work, which made services less expensive and allowed attorneys
to increase their case loads.1469 Improving access to justice and reducing poverty, were thus key
motiving factors for the establishment of a paralegal sector in the USA during the late 1960s.1470
These practitioners assumed various titles, including legal assistant, lawyer’s aide, lawyer/attorney
assistant, legal paraprofessional, lay assistant, legal technician, lay advocate and paralegal assistant. 1471
These terms ultimately gave way to the term paralegal. Paralegals, by virtue of the fact that they were
part of a team delivering legal services, were directly supervised by lawyers.1472
1468
Herard, GM, The Paralegal Profession: An Examination of its History and Viability in the Current Job Market
DePaul University, 2011) 20.
1469
Astl, C, Behind the Bar: Inside the Paralegal Profession, (2004) New York, USA: iUniverse, Inc.
1470
McCabe, SM, 'A brief history of the Paralegal Profession', (2007), 86(7), Michigan Bar Journal, pp. 18–21.
1471
McCabe, SM (2007).
1472
McCabe, SM (2007).
255
The National Federation of Paralegal Associations1473 recognises four categories of paralegals, namely,
traditional paralegal,1474 non-traditional paralegal,1475 freelance/contract/virtual paralegal1476 and the
independent paralegal.1477 The range of categories is testimony to the diversity and evolutionary nature
of the practice. Statsky1478 divides these into two main categories, namely, the traditional paralegal1479
and the independent paralegal.1480 The paralegal sector in the United States of America has evolved
into an ‘industry’ that employs approximately 250 000 paralegals with various levels of qualifications
and who perform a range of tasks in different settings.1481
Governance
The American Bar Association (ABA) formed the Special Committee on Lay Assistants for Lawyers
(SCLA) in 1968, which was renamed the Special Committee of Legal Assistants (SCOLA) and
subsequently the Standing Committee on Paralegals (SCOP).1482 The objects of SCLA were to
‘[m]onitor the use of non-lawyer assistants’, ‘[p]revent unauthorised practice of the law’ and
‘[r]ecommend standard of education and training’.1483 SCOP constructed specific guidelines for
1473
National Federation of Paralegal Associations, Paralegal Responsibilities, (2011) .
1474
National Federation of Paralegal Associations (2011) p. 3. ‘A paralegal who works with supervision by and/or
accountability to a lawyer in a law firm environment’ This is where most of the paralegals are employed and explains
the lawyer driven nature of paralegal practice in the USA. The nature of this practice necessitated the establishment
of a paralegal manager in many big law firms.
1475
National Federation of Paralegal Associations 2011 National Federation of Paralegal Associations (2011). ‘A
paralegal who works with supervision and/or accountability to a lawyer outside of a law firm environment’ This
accounts for most of the employment growth in the profession. The paralegal practitioners are employed, for
example, by corporations, insurance companies, financial institutions, medical corporations and research firms.
1476
National Federation of Paralegal Associations (2011).‘A paralegal who works as an independent contractor with
supervision by and/or accountability to a lawyer’. These practitioners are self-employed and are retained by attorneys
from both the public and the private sector on a case-by-case basis as needed and thus offers a cost-effective
alternative to a full-time employee.
1477
National Federation of Paralegal Associations (2011). ‘A paralegal who provides services to consumers with
regard to the process in which the law is involved and for whose work no lawyer is accountable’. This category is a
new development in the evolution of the paralegal profession in the USA and is defying the boundaries of the delivery
of legal services as traditionally known. They provide a range of services directly to the public according to their
specific area of expertise and their scope of practice ranges from preparing documents (scrivener services),
representation when permitted by the court rules or law and informing the public about the legal system and pro se
(propria persona/litigant in person) procedures in various courts. This category of practitioners include the following:
the special advocate: ‘a paralegal authorised to participate in court proceedings involving specified classes of parties
or cases’ also known as a ‘court appointed special advocate’ (CASA) and the agency representative: ‘a paralegal who
is authorised by statue or agency rule to represent clients in agency proceedings, for example the Social Security
Administration.’
1478
Statsky, WP, Introduction to Paralegalism: Perspectives, Problems and Skills, 8th ed, (2016) New York, USA:
Cengage Learning.
1479
These are paralegals that are employed by attorneys.
1480
These paralegals are self-employed and offer their services to attorneys and to the public.
1481
McCabe, SM (2007).
1482
Herard, GM (2011).
1483
McCabe, SM (2007) p. 9.
256
colleges and vocational schools in respect of paralegals’ education and training although service
providers adhere to these guidelines on a voluntary basis.1484
There are at least 14 categories of paralegal associations in the United States of America.1485A number
of these professional bodies play an important role in the development of paralegal professionals and
in the quality of services, which they render.1486 The bodies advocate for increased use of paralegal
services, negotiate on behalf of their members, offer continuous professional development, maintain
paralegal websites, publish paralegal related research and literature, and require their members to
comply with their codes of conduct.1487 In this respect, the profession mirrors characteristics of the
narrow legal profession.
Regulation
In 1985 the SCLA had the opportunity to consider the mandatory regulation for paralegals. It rejected
the mandatory federal regulation of paralegals and issued an opinion that the mandatory regulation of
paralegals should be left to the courts and legislature.1488
There are no national standards, which regulate paralegal practice in the United States of America.1489
Paralegal associations nevertheless adopt voluntary guidelines rather than mandatory regulation and
support regulation only in respect of specific duties in areas of specialisation. The lack of mandatory
regulation of paralegal services did not deter the sector’s professionalisation.
Certification
In most American states paralegals do not require a license to practice.1490 However, most paralegal
associations in the USA promote the voluntary certification of paralegals.1491 Formal recognition
1484
McCabe, SM (2007).
1485
Statsky, WP (2016).
1486
National Association of Legal Assistants (NALA)
National Federation of Paralegal Associations (NFPA)
National Association for Legal Professionals (NALS)
American Alliance of Paralegals, Inc (AAPI)
Association of Legal Administrators
International Paralegal Management Association
State Bar of Michigan Legal Assistants Section. (McCabe, SM (2007).).
1487
McCabe, SM (2007).
1488
McCabe, SM (2007).
1489
Statsky, W.B (2012).
1490
Statsky, W.B (2012).
1491
NALA, which has a membership exceeding 18 000 paralegals and legal assistants, offers a voluntary certification
examination for their members at two levels. The first is the entry-level certified legal assistant (CLA) examination or
the certified paralegal (CP) examination. The second is an advanced level of certification for experienced paralegals
who have passed the certified legal assistant specialist (CLAS) examination. Paralegals seeking certification must
257
entitles them to use the designated title, as bestowed by the association.1492 Certification is therefore
not a pre-requisite for practising as a paralegal but sets a benchmark for professional standards within
the paralegal sector.
Paralegals or legal assistants initially had very little or no formal education and training. In essence,
they were legal secretaries who received in-house training in order to increase their knowledge of the
law and to develop skills that equipped them to perform intricate legal tasks.1493 Since the first paralegal
programmes were offered by the University of Denver’s College of Law, the Law School of the
University of Columbia and the College of Human Services, the demand for qualitative and more
sophisticated paralegal education has increased.1494
In 1974 the ABA adopted the Guidelines for the Approval of Legal Assistant Education
Programmes.1495 The ABA guidelines are not mandatory and there has been opposition from the
paralegal sector to this lawyer-driven control of paralegal practice.1496 Paralegal education has grown
from 31 paralegal programmes in 1973 to more than 1000 in 2007, although only approximately 250
have been fully or provisionally accredited by the ABA.1497
thus meet NALA’s educational and experiential criteria, pass the certification examination, comply with its code of
ethics and take part in its continuous professional development programmes. The certification lasts five (5) years.
NFPA, which represents approximately 15 000 paralegals, also offers a voluntary paralegal advanced competency
(PACE) examination, which entitles the successful candidate to use the designation Registered Paralegal after his or
her name. NALS, which is considered to be the leading organisation for all professional legal support staff, also
offers voluntary certification examinations, including the entry-level ALS and advanced PLS and professional
paralegal (PP) examinations. The American Alliance Certified Paralegal (AACP) is offered by AAPI.
The Association for Paralegal Education (AAfPE), a national association for paralegal educators in the USA
representing approximately four hundred (400) institutional members, was established in 1981. It has published the
Core Competencies for Paralegal Education Programmes which contains the exit level competencies and its Statement
of Academic Quality sets out minimum criteria for academic programmes relating to curriculum development,
physical resources, faculty, marketing and promotion, instruction, qualifications of the head of the programme,
student competencies and services.
1492
McCabe, SM (2007).
1493
McCabe, SM (2007).
1494
McCabe, SM (2007).
1495
These guidelines require a paralegal programme to be taught at post-secondary level for a minimum of sixty (60)
semester hours of which eighteen (18) must be allocated to legal speciality courses. The process of accreditation by the
ABA involves a self-evaluation application by the institution seeking accreditation, an evaluation of the report by the
ABA that may require further particulars, an on-site inspection of the institution by the ABA and a recommendation by
the ABA following a review of the application and the on-site inspection.
1496
Statsky, WP, The Regulation of Paralegals: Ethics, Professional Responsibility, and Other Forms of Control, (1987)
New York, USA: West Publishing Company. cited in Tow, AM, 'Deconstructing ABA Approval', (1999), 15, J.
Paralegal Educ. & Prac., pp. 1–44. See also Tow, Allan M Flaherty, MM, 'AAfPE Accreditation and Academic
Freedom', (2000), 16(1), Journal of Paralegal Education and Practice 1, pp. 1–22.
1497
McCabe, SM 2007 McCabe, SM (2007).
258
The Position Statement of the American Association for Paralegal Education Regarding Educational
Standards for Paralegal Regulation Proposals1498 sets out minimum standards for education. It considers
a paralegal to be qualified if he or she has an associate or baccalaureate degree or its equivalent course
work, or a qualification in paralegal education1499 from an institution, which is accredited by a nationally
recognised agency.
AAfPE, in collaboration with the NFPA, NALA, the Legal Assistant Management Association, the
Association of Legal Administrators and the Standing Committee on Legal Assistants of the American
Bar Association, drafted the brochure entitled ‘Choosing a Quality Paralegal Education Programme’,
which sets out the minimum educational requirements for entry-level paralegals.1500 There are various
academic routes by which a paralegal can be qualified and the content of these programmes varies,
depending on their duration and intensity. However, most states do not have minimum educational
requirements.1501
The scope of practice and the unauthorised practice of the law (UPL)
In the USA paralegals are employed mainly in law offices, but they also work for corporate legal
departments, various departments in the public sector, not-for profit agencies and as independent
contractors.1502 The nature of their duties spans administrative law, alternative dispute resolution,
appeal matters, asbestos litigation, bankruptcy, corporate matters, collections, commercial litigation and
collection, computer litigation support, construction, administration related to contracts, criminal
matters, family law related matters, employee benefits, environmental law, foreclosure, immigration,
intellectual property law, employment matters, landlord/tenant matters, litigation, personal
injury/medical malpractice/product liability, probate and estate administration, public benefits, real
property, securities and municipal bonds, tax, workers compensation and paralegal management and
administration.1503
The scope of practice of the paralegal is confined by the direct practice of the law, which the ABA
defines as ‘the acceptance of case work on behalf of one’s employer, setting fees, providing legal advice
that is not specifically dictated by an attorney, making a legal decision on a client’ behalf, or
1498
Adopted by AAfPE in 2001 San Antonio Texas.
1499
Associate degree, baccalaureate degree (major or minor), certificate or master’s degree.
1500
National Federation of Paralegal Associations, “How to Choose a Paralegal Education Program - National
Federation of Paralegal Associations”, (2016), available at:
https://www.paralegals.org/i4a/pages/index.cfm?pageid=3365. (accessed 23 July 2016)
1501
Statsky, WP (2016).
1502
Statsky, WP (2016).
1503
National Federation of Paralegal Associations 2011 National Federation of Paralegal Associations (2011).
259
representing a client in court.’1504 Yet, paralegals in the USA have become highly skilled over the years,
which has warranted the use of billable hours to charge for their services in the private sector as their
scope of practice in the public sector involves the full spectrum of legal services, barring representation
in a court of law.1505 They are nevertheless allowed to represent the poor and the indigent before a host
of federal and state administrative agencies.1506 This gives rise to the blurring of lines between the
authorised and unauthorised practice of the law, although there is no clear definition of either concept.
The ABA has acknowledged that it is not in its best interest to define the unauthorised practice of the
law.1507 Generally, though, it is an offence for any person who is not admitted to the state’s legal bar to
render any type of legal assistance.1508 The rationale behind the UPL, in the main, centres on the need
to protect consumers from unqualified and incompetent practitioners of the law.1509 Related to this is
the protection of the effective administration of justice, the fact that lawyers are subject to strict ethical
rules and discipline, and the need to minimise competition among practitioners of the law.
This rationale has been met with scepticism from various quarters.1510 Critics argue that these
justifications are based on flawed and untested assumptions, including the notion that a lawyer is always
more competent at a given task than a non-lawyer, and that consumers in a free market would choose
incompetent non-lawyers.1511 They further claim that consumer protection legislation is more effective
at protecting consumers from incompetent and fraudulent service providers than UPL. It is of particular
significance that there is empirical evidence that demonstrates that non-lawyers are equally effective as
lawyers at resolving certain legal issues.1512 Moreover, there is evidence, which supports the notion
that a non-lawyer who is familiar with a specialised area of the law is more equipped as an advocate
than a lawyer who has general knowledge of the law.
However, the UPL is far from having been settled. Recently enacted Connecticut Superior Court Rule
2-44A expresses the wide scope of the UPL restrictions.1513 It codifies the common law position on the
1504
Herard, GM (2011) p. 6.
1505
Statsky, WP (2016).
1506
Statsky, WP (2016).
1507
Longobardi, M, 'Unauthorized Practice of Law and Meaningful Access to the Courts: Is Law Too Important to Be
Left to Lawyers', (2013), 35, Cardozo L. Rev., pp. 2043–2078.
1508
Longobardi, M (2013).
1509
Denckla, DA, 'Nonlawyers and the unauthorized practice of law: An overview of the legal and ethical paramaters',
(1998), 67(5), Fordham Law Review, pp. 2581–2599.
1510
Christensen, BF, 'The Unauthorized Practice of law: Do Good Fences Really Make Good Neighbors—or Even Good
Sense? 1', (1980), 5(2), Law & Social Inquiry, pp. 159–218.
Rhode, DL, 'Policing the professional monopoly: a constitutional and empirical analysis of unauthorized practice
prohibitions', (1981), Stanford Law Review, pp. 1–112.
1511
Rhode, DL (1981).
1512
Rhode, DL, 'Too Much Law, Too Little Justice: Too Much Rhetoric, Too Little Reform', (1998), 11(4), Georgetown
Journal of Legal Ethics, pp. 989–1018.
1513
Connecticut General Statutes, (2012) CT Gen Stat § 51-88.
260
practice of law, which reflects the case law from other jurisdictions.1514 This rule was implemented by
the judiciary to reinforce the Connecticut General Statute, which criminalises the UPL. In brief, this
statute places a prohibition on the practice of law by persons who are not admitted as attorneys in the
state of Connecticut.1515
Paralegal practice in the USA has evolved into an extensive service, the ambit of which is impossible
to ignore. Notwithstanding the challenges regarding the scope of practice and its lack of mandatory
regulation, it would seem that paralegal practice as a profession in the United States is well settled.
However, being lawyer-driven and justice-sector focused begs the question of the extent to which it
contributes to greater access for the marginalised and the poor. The Civil Gideon movement is testimony
to challenges regarding access to justice that remain in the United States of America. While paralegal
services will undoubtedly play an essential role in fulfilling this unmet need.
9.6. THE PARALEGAL PROFESSION IN ENGLAND
England has a long history of reliance on solicitor’s managing clerks, dating back to the late nineteenth
century, although its existence is not well documented.1516 These paralegals formed an essential part of
the private practice of a solicitor for centuries and the service was thus lawyer-driven.
However, the services of paralegals were extended beyond the solicitor’s office to neighbourhood
advice centres. The Community Advice Bureaux (CABx), charitable entities, which catered for legal
services amongst low income citizens in the country, were established in 1939.1517 These CABx were
funded by local authorities, businesses, charitable trusts and individual donations. Due to the fact that
the solicitors and barristers held no monopoly over provision of providing legal advice, it became a
thriving business by the mid-1970s.1518
The need to provide more cost-effective legal services to a geographically diverse community and to
reduce government involvement in legal services necessitated an overhaul of the country’s legal aid
scheme, replacing it with the Legal Services Commission.1519 This scheme funded initial legal advice,
which included certain services that non-lawyers provided.1520 The title of solicitors’ clerk has since
1514
Longobardi, M (2013).
1515
Connecticut General Statutes (2012).
1516
Flood, JA & Johnstone, Q, 'Paralegals in English and American Law Offices', (1982), 2, Winsor Yearbook of
Access to Justice, pp. 152–190.
1517
Ash Citizens’ Advice Bureau, A History of the Citizens’ Advice Bureau 1939-2009, (2009) Ash, UK.
1518
Zander, M, Legal Services for the Community, (1978) London, UK: Temple Smith.
1519
Young Legal Aid Lawyers, Legal Aid - An Introduction, (2012) London, UK.
1520
Cowley, JI 2004 Cowley, JI (2004).
261
been replaced by legal executive, but today the term paralegal denotes paralegal practice in many
contexts, including legal advisor or assistant legal advisor, legal clerk, litigation executive, litigation
assistant, claims handler, file handler, contracts reviewer, police station representative, crown or
magistrates court clerk, case worker, trainee law costs draftsman and costs paralegal.1521
The Institute of Paralegals estimates that there are 60 000 paralegals in solicitors’ firms in England, and
that a further 250 000 persons outside of the legal profession have jobs that contain a substantial legal
element, including caseworkers, housing advisers, contracts managers, HR professionals, compliance
and regulatory staff and company secretaries.1522
Governance
The first association of solicitors’ managing clerks was established in 1892, named the Solicitors’
Managing Clerks’ Association.1523 This association ultimately evolved into the Chartered Institute of
Legal Executives (CILEx).1524 CILEx is the professional regulatory body for legal executives, legal
practitioners, legal secretaries and paralegals in England and represents approximately 20 000 trainee
and Chartered Legal Executives.1525 Its focus is primarily on law office practitioners.
The Institute of Paralegals is the oldest not-for-profit incorporated paralegal representative body, which
was incorporated in 2003.1526 It does not have a regulatory function, but sets competency standards for
paralegals, including conveyancing paralegals, legal secretaries and legal assistants. These standards
are not mandatory, but a mere professional development tool, which is intended to assist with the
aforementioned practitioners’ recruitment, training, evaluation and career development.
The National Association of Licensed Paralegals is also a non-profit paralegal membership body that is
recognised as an awarding organisation by Ofqual.1527 Its purpose is to provide for the qualification of
its affiliate members as paralegals and for the career advancement of its qualified members, to oversee
its system of self-regulation, disseminate information, represent, promote and express the collective
interests of its members, act as a consultative body on all things concerned with the paralegal profession,
1521
Manchester Metropolitan University, “Work as a Paralegal”, (2017), available at: www.mmu.ac.uk/careers/guides.
1522
Institute of Paralegals, “The New Paralegal Profession”, (2017), available at: The Job Market
http://www.theiop.org/careers/become-a-qualified-paralegal/law-graduates.html. (accessed 5 April 2017)
1523
Flood, JA & Johnstone, Q (1982).
1524
Arram, J, “History of CILEx”, (2017), available at: Who We Are
http://www.cilex.org.uk/about_cilex/who_we_are/history-of-cilex. (accessed 5 April 2017)
1525
Arram, J (2017).
1526
Institute of Paralegals, “Who We Are”, (2017), available at: About Us http://www.theiop.org/about-
us/introduction.html. (accessed 5 April 2017)
1527
Ofqual is the regulator of qualifications in England & Wales.
262
provide a forum for all matters, which affected the interests of its members, and to provide networking
opportunities amongst its members. All these entities are voluntary self-regulating bodies and CILEX
is the only entity that has a regulatory function.
Regulation
The paralegal profession in England is mostly unregulated. However, there are certain paralegal
services that are subject to regulation by statute, whether the paralegal is employed by a solicitor or
self-employed. Paralegals that are employed by solicitors are regulated by the Solicitors Regulation
Authority by virtue of the fact that their employers are officers of the court. Paralegals who are not
employed by solicitors are subject to a range of statutes, depending on the nature of the service that they
render.1528
The Professional Paralegal Register (PPR) is a recent development in the ‘regulation’ of paralegals in
the country. It was established following recommendations made in the Legal Education & Training
Review (LETR), which was published in June 2013.1529 The PPR is a voluntary registered scheme,
which promotes professional paralegals as a recognised fourth arm of the legal profession, and to
enhance consumer choice and protection. It has a complaints procedure and compensation fund for
clients of paralegals who have been awarded a Paralegal Practising Certificate.
Zander notes that ‘[t]he English legal profession, unlike its counterparts in some countries, enjoys no
monopoly over the giving of legal advice’.1530 Thus, barring the above statutory requirements for
registration, and the limitations related to ‘reserved work’, which is governed by the Legal Services Act
2007, the services of paralegals are largely unregulated.
1528
Those who engage in immigration practice must be registered with the Office of the Immigration Services
Commissioner unless they are exempted from registration. (Office of the Immigration Services Commissioner, “How
to become a regulated immigration adviser - GOV.UK”, (2016), available at: Guidance
https://www.gov.uk/government/publications/how-to-become-a-regulated-immigration-adviser/how-to-become-a-
regulated-immigration-adviser. (accessed 3 May 2017)
Paralegals wishing to offer legal services related to claims involving personal injury, work-related injury, disease or
disability, criminal injuries compensation, Industrial Injuries Disablement Benefit, employment, housing disrepair or
financial products and services must be registered with the Claims Management Division of the Ministry of Justice
under the Compensation Act of 2006. (Institute of Paralegals, “The regulation and professional conduct of paralegals”,
(2017), available at: Regulation http://www.theiop.org/regulation.html; Financial Conduct Authority, “FCA
Handbook”, available at: https://www.handbook.fca.org.uk/handbook.) (accessed 3 May 2017)
The Financial Services and Markets Act 2000 established a registration scheme managed by the Financial Conduct
Authority for persons offering most types of financial advice, including mortgage and insurance related advice.
(Institute of Paralegals 2017 Institute of Paralegals (2017); Financial Conduct Authority Financial Conduct Authority.
Paralegals acting as police station representatives must obtain approval from the Solicitors Regulation Authority if
they want to claim compensation for services rendered under the legal aid scheme. (Institute of Paralegals 2017
Institute of Paralegals (2017).).
1529
Recommendation 23.
1530
Zander, M (1978) p. 229.
263
Certification
The PPR provides for various categories of paralegals, according to their knowledge and experience.1531
This scheme awards Professional Paralegal Practitioner status to a paralegal who is regulated by the
PPR and holds a current Professional Paralegal Practicing Certificate. Registration with the PPC is only
a requirement when legal services are offered to the public.
No minimum qualifications are generally prescribed for a person who wishes to perform a paralegal
service in England. However, for the purpose of licensing, certification and rendering certain legal
services, various levels of education and training are required. NALP offers a variety of diplomas, which
range from level 3 and 4 diplomas for school leavers, to a Higher Diploma in Paralegal Practice for
LLB undergraduates and a level 7 Diploma in Paralegal Practice for LLB graduates.1532 A number of
skills courses are also offered. Its licencing criteria for awarding fellowship status to a member include
a law qualification at minimum level 6 with three (3) years’ experience, or a NALP level 4 diploma
with 5 years’ experience. CILEx also offers level 3 and 4 Legal Services qualifications for paralegals. 1533
Scope of practice and reserved legal activity
Paralegals in England usually render services wherever legal or quasi-legal work is undertaken,
including solicitors’ offices, charities, law centres, local authorities, central government departments
and agencies, the court system, industry and commerce and private paralegal firms.1534 Paralegals that
1531
A trainee paralegal who is studying towards a level 3 qualification and has no or very little work experience is
categorised under Tier 1. A paralegal who has obtained a level 3 qualification and/or has a minimum of two (2)
years’ experience in a particular area of practice is categorised as Tier 2. Tier 3 includes those paralegals who have
obtained a minimum of a level 6 qualification (degree level) and have a minimum of two (2) years’ qualifying
experience. A paralegal who has obtained a level 6 qualification or above and has a minimum of four (4) years
qualifying experience is categorised as Tier 4 (Professional Paralegal Register, “The Tiers Explained | PPR”, available
at: Protected: Paralegals http://ppr.org.uk/paralegals/the-tiers-explained/.) (accessed 10 March 2017)
1532
National Association of Licenced Paralegals, “About NALP”, available at: NALP
http://www.nationalparalegals.co.uk/about_nalp. (accessed 10 March 2017)
1533
Chartered Institute of Legal Executives, “Level 3 Certificate and Professional Diploma in Law and Practice”,
(2017), available at: Stage 1 Training http://www.cilex.org.uk/study/lawyer_qualifications/level_3_qualifications.
(accessed 3 April 2017)
Chartered Institute of Legal Executives, “Level 4 Knowledge Qualification”, (2017), available at: Qualification
Structure http://www.cilex.org.uk/study/legal_services_qualifications/qualification_structure/level_4_knowledge.
Chartered Institute of Legal Executives, “Level 4 Competence Qualification”, (2017), available at: Qualification
Structure http://www.cilex.org.uk/study/legal_services_qualifications/qualification_structure/level_4_competence.
1534
Institute of Paralegals, “Paralegal Law Firms - Legal services run by non-lawyers”, (2017), available at:
http://www.theiop.org/regulation/paralegal-law-firms.html. (accessed 3 May 2017)
264
are employed in solicitors’ offices perform a range of routine tasks, including legal research, drafting
letters and documents, preparing briefing notes, document management, proof reading, instructing
counsel, taking client statements and notes in court, attending various meetings, making court
applications, pleadings, billing and general administration.1535
Paralegal practice outside the traditional law office environment spans a range of advice centres,
consumer agencies, claims companies that manage injuries, employment and other claims, and
specialist advisors in areas such as immigration, divorce, debt and housing.1536
The County Court (Rights of Audience) Direction1537 permitted Fellows to appear in the County Court
for matters which included certain unopposed applications and applications for judgment by consent.
They could also appear in County Court arbitrations and before tribunals at the discretion of the court
or tribunal.1538
Legal reforms such as Section 11(1) of the Courts and Legal Services Act (CLSA) 1990 made inroads
into legal services, which were traditionally reserved for solicitors and/or barristers. 1539 Non-lawyers
could apply for right of audience in the courts in respect of debt, housing matters and small claims
procedures provided that they met the criteria set out in section 17 of the CLSA. The Institute of Legal
Executives took advantage of the legal reforms and passed the Legal Executives Order (1998), which
granted Fellows right of audience in accordance with its status as an authorised body in terms of section
27 of the Courts and Legal Services Act (1990).
The need to provide more cost-effective legal services to a geographically diverse community and the
desire on the part of government to decrease its involvement in legal services prompted the overhaul of
the legal aid scheme, replacing it with the Legal Services Commission.1540 This scheme allowed for the
funding of initial legal advice, which included certain services that non-lawyers provided.
The Legal Services Act1541 subsequently repealed the CLSA and the right of audience for Fellows
survived this repeal. However, agents who are not in the employ of a solicitor or barrister will only be
1535
Manchester Metropolitan University (2017).
The University of Sheffield, The Careers Service. Law Briefing: Working as a Paralegal.
1536
Institute of Paralegals 2017 Institute of Paralegals (2017).
1537
The County Court (Rights of Audience) Direction 1978
1538
The County Court (Rights of Audience) Direction 1978
1539
Legal Services Institute, The Regulation of Legal Services: Reserved Legal Activities - History and Rationale,
(2010) .
1540
The Legal Services Commission was established in terms of the Access to Justice Act 1999.
1541
Legal Services Act (2007).
265
granted right of appearance on a case-by-case basis.1542 The Legal Services Act also provides for non-
lawyers to own solicitors’ firms, which are called alternative business structures.1543 Section 12(1) of
the Legal Services Act (2007) nevertheless lists six reserved legal activities, which are: the exercise of
a right of audience;1544 the conduct of litigation;1545 reserved instrument activities;1546 probate
activities;1547 notarial activities;1548 and the administration of oaths.1549 It has been pointed out that,
‘(t)he definition of reserved legal services is relatively straightforward since those areas
are contained in statute.... These areas could be termed the inner circle of legal services.
In order to provide such services, a practitioner must be certified by a regulatory body
which has itself been authorised so to do...1550
It would appear that paralegal services in England are not only an integral part of conventional legal
services, but have also evolved into a profitable commercial endeavour.
9.7. THE PARALEGAL PROFESSION IN MOZAMBIQUE
Poverty, civil war and recurring natural disasters have hampered development in Mozambique, which
is a country that has an abundance of natural resources. The cessation of hostilities ultimately paved
the way for legal reforms in the country. Mozambique constitution provides for the State to own the
1542
Hill, R, 'Right of audience' of September 23, 2010, The Law Society Gazette, online:
<https://www.lawgazette.co.uk/law/right-of-audience/57199.article>. (accessed 5 December 2017)
1543
Part 5 of the Legal Services Act (2007).
1544
right to appear before and address a court, including the right to call and examine witnesses, except where, before
the Act comes into force, there was no restriction (Schedule 2, para3); reserved, and therefore (subject to exemptions)
can only be carried out by appropriately authorised persons, are set out in section 12(1) of the Legal Services Act
(2007). and defined in Schedule 2.
1545
the issuing, commencement, prosecution and defence of proceedings before any court in England and Wales, and
the performance of any ancillary functions (such as entering appearances to actions) in relation to such proceedings,
except again where, before the Act, there was no restriction (Schedule 2, para 4).
1546
preparing any instrument of transfer or charge for the purposes of the Land Registration Act, of 2002., or making
an application or lodging a document for registration under that Act; and preparing any other instrument relating to
real or personal estate for the purposes of the law of England and Wales, or other instrument relating to court
proceedings within England and Wales (except where, before the Act comes into force, there was no restriction
relating to instruments relating to court proceedings) (Schedule 2, para 5(1) and (2).
1547
preparing any probate papers (that is, papers on which to found or oppose a grant of probate or of letters of
administration) for the purposes of the law of, or in relation to any proceedings in, England and Wales (Schedule 2,
para 6)
1548
activities which, immediately before the Act comes into force, were customarily carried on by notaries in
accordance with the “Public Notaries Act 1801”, available at:
http://www.legislation.gov.uk/ukpga/Geo3/41/79/contents.(see further, para2.6 below), though this is not taken to
include reserved instrument or probate activities or the administration of oaths (Schedule 2, para7) (accessed 5 May
2017)
1549
the exercise of the powers conferred on a commissioner for oaths by the Commissioners for Oaths Act, of
1889.and 1891 and section 24 of the Stamp Duties Management Act, of 1891.(Schedule 2, para 8).
1550
Clementi, D, Review of the Regulatory Framework for Legal Services in England and Wales, (2004) London, UK:
Department of Constitutional Affairs (Great Britain), ch E., para 14.
266
land, which cannot be bought, sold or mortgaged, and allows state agents to allocate dereito de uso e
approveitemento de terra (DUAT).1551 Mozambique’s land policy reforms are considered to be the
most progressive in Africa,1552 and gives legal recognition to the rights over land that was occupied on
a ‘historical and customary basis’.1553 Prevailing conditions in respect of land in the country manifested
in growing demand for land, ‘weak public land institutions, unequal power relations and powerful
people who do not accept the basic principles behind the 1997 Land Law’.1554 The need, therefore,
arose for the rights of vulnerable communities, including women, to be protected against the State and
other powerful actors, such as investors and speculators. Paralegals performed a pivotal developmental
role in informing these communities about their rights and empowering them to enforce these rights. A
paralegal in Mozambique is, therefore, considered to be ‘the link between communities and higher level
professional and technical support…’1555
Governance
Paralegals in Mozambique do not have a formal governance structure. Prior to the commencement of
the CFJJ-FAO1556 paralegal programme in 2006, ‘legal technicians’1557 and ‘legal assistants’1558 that
were employed by the Institute for Promoting Access to Justice (IPAJ), provided legal assistance free
of charge for the poor and the marginalised.1559 The NGO, Liga Mocambicana dos Dereitos Humanos
(LDH), also employed a number of paralegals who deal with prison conditions and the treatment of
those accused of crimes.1560 Other organisations include Centro Terra Viva (CTV), a leading NGO that
specialises in environmental and rural development issues, whose paralegals engage in rights training
and civic education, the Organisation for Mutual Rural Assistance (ORAM), whose paralegals perform
the dual role of legal advisors and community trainers, and Lupa, whose paralegals perform a similar
function.1561
1551
Translated as ‘ the right to use and exploit the land’Linguee, “Dictionary Portuguese-English”, (2017), available
at: http://www.linguee.com/portuguese-english/translation/direito+de+uso+e+aproveitamento+de+terra.html.
(accessed 10 January 2017)
1552
1553
Land Law, of 1997.
1554
Tanner, C & Bicchieri, M (2014) p. 24.
1555
Tanner, C & Bicchieri, M (2014) p. 60.
1556
CFJJ – Centre for Juridical and Judicial Training
FAO – Food and Agriculture Organisation of the United Nations
1557
Law graduates.
1558
Persons without a law degree but who have legal training recognised by government.
1559
FAO – Food and Agriculture Organisation of the United Nations.
1560
1561
267
Regulation/certification/licensure
Paralegals in Mozambique are currently not regulated; neither are they required to obtain some level of
certification or have a license to render their paralegal service. They are also not legally recognised in
the country.1562
There is strong collaboration between LDH and IPAJ over education and training for their paralegals,
‘legal technicians’ and ‘legal assistants’, as well as curriculum development for their training
programmes.1563 The education and training varies depending on the scope of practice. Legal
technicians, who have right of appearance, are required to have a law degree.1564 Legal assistants, who
provide assistance in minor matters where there are no lawyers or legal technicians, are required to have
some form of legal training that is recognised by the Ministry of Justice.1565 The shortest formal training
programme is offered by CTV-IDLO1566 during which community-based paralegals receive only two
days of training. This training focuses on community lands’ right delimitations and issues, which relate
to women’s rights.1567 Project professionals also provide in-service training to these paralegals.
Scope of practice
The scope of the paralegal practice in Mozambique is mainly, community-based and the role of the
paralegal is developmental.1568 They provide civic education and legal support, educate community
leaders and individual households and thus enhance their negotiation power when entering into
agreements.1569 These practitioners also perform the functions of mediators and brokers, and their
presence helps to level the playing field between the parties, resulting in more equitable outcomes. 1570
The paralegal in Mozambique is thus a powerful tool for legal empowerment. Their scope of practice
covers a spectrum of legal services, which includes mobilisation, civic education, legal advice and legal
support.1571 Currently, this scope of practice currently hardly threatens the narrow legal profession, thus
1562
1563
1564
1565
1566
Knight, R, Adoko, J, Auma, T, et al, Protecting Community Lands and Resources: Evidence from Liberia,
Mozambique and Uganda, (2012) Rome, Italy: Namati.
1567
Knight, R, Adoko, J, Auma, T, et al (2012).
1568
1569
Support for communities by paralegals employed by Centro Terra Viva (CTV), for example, was found to be most
effective in proving and documenting their land rights. (Tanner, C & Bicchieri, M (2014).).
1570
Knight, R Adoko, J Auma, T et al (2012).
1570
1571
268
the unauthorised practice of the law or professional encroachment has not emerged as a bone of
contention.
Although paralegal practice in Mozambique pales in comparison with its economically developed
counterparts in this study in respect of size and number, its value as an essential service in the legal
empowerment of the vulnerable in the country is indisputable.
9.8. THE PARALEGAL PROFESSION IN SIERRA LEONE
Brutal civil war ravaged Sierra Leone’s landscape and carved deep scars into its society, which required
extraordinary efforts to heal. The war has destroyed most of the country’s social, economic and physical
infrastructure, causing a complete breakdown of civil and political authority. It has been a daunting task
to rebuild this infrastructure in order to ensure security and livelihood.1572 Therefore, it is no surprise
that the promotion and protection of citizens’ rights, especially those of women and children, have been
challenging.1573 Moreover, the legal aid system was decentralised and lacked clear criteria for
eligibility.1574
In the aftermath of the war, as justice facilitators, community-based paralegals, particularly in rural
areas, were met with approval by the international donor community, as well as government. Paralegals
who are employed by Timap for Justice are deployed across a bifurcated legal system and incorporated
both the traditional and formal justice system in a pioneering endeavour to provide primary justice
services in Sierra Leone. By 2012, 74 Timap paralegals were providing basic legal services in 33
locations across eight districts.1575 Timap, together with a range of other organisations,1576 assisted by
providing these services to communities that would otherwise not have had access. Namati, an
international group that supports the development of community legal services, Advocaid and Defence
for Children, support women and children who are in conflict with the law, while the Network
Movement for Justice and Democracy focuses on the mining sector, and Timap for Justice, Access to
Justice Law Center (AJLC) and the Justice and Peace Commission (JPC), render more general legal
services. Paralegals were initially referred to as ‘human rights officers’ but reference to these
community activists has settled on the more generic term ‘paralegal’.1577
1572
The Republic of Sierra Leone, Introductory Statement Consideration of the Combined Initial, 2nd , 3rd , 4th and
5th Periodic Report of the Republic of Sierra Leone in pursuance of its obligation under Article 18 of the Convention
for the Elimination of All forms of Discrimination, (2007) New York, USA.
1573
The Republic of Sierra Leone (2007).
1574
The Republic of Sierra Leone (2007).
1575
The Law & Development Partnership Ltd (2015).
1576
Brac, Advocaid, Access to Justice Law Centre and Justice and Peace Centre.
1577
Sesay, D, Community-based Paralegals in Sierra Leone, (2014) Namati (Unpublished paper).
269
Governance
Timap for Justice works in collaboration with Community Oversight Boards (COBs) in each of the
chiefdoms where they operate. Members of these COBs are selected in consultation with a range of
stakeholders1578 and COBs perform a dual function. They serve as a ‘cushion’ between the community
and Timap, providing support in the event of unavoidable conflicts between certain traditional practices
(and leaders) and Timap. They also assist with a community needs assessment, which helps to direct
the service. Secondly, COBs play a pivotal role in ensuring sustained, thorough supervision of
community-based paralegals. COBs provide regular feedback on paralegal performance to the
programme directors.
Regulation
Paralegals in Sierra Leone were not regulated neither did rendering the service require certification.
However, the Legal Aid Act (2012) provides for a mixed model of criminal and civil legal aid on a
continuum of services from legal information and mediation services to legal representation in court.1579
This institutionalised the role of the paralegal in Sierra Leone, as it recognised the role of the paralegal
as an integral part of the legal aid framework. These services are provided through a public/private
partnership of government and civil society.1580 The Act established a Legal Aid Board (LAB), which
is responsible for the administration, coordination and monitoring of the provision of criminal and civil
legal aid.1581
The approval of a comprehensive National Land Policy by Sierra Leone’s cabinet paved the way for
reforms in the country’s land tenure system in 2015.1582 The policy expressly provides for paralegals to
assist communities in their interaction with would-be investors.1583 Their services are paid for from a
community justice fund, which is established from the contributions from large investors.1584 The donor-
funded Timap for Justice Programme is set to transition into part of a hybrid model of service delivery
that will include Sierra Leone’s new Legal Aid Board. These legal reforms may necessitate the
regulation and certification of paralegals in Sierra Leone.
1578
These include paramount chiefs, other chiefs, local organisations, and community members.
1579
Part VI of the Legal Aid South Africa Act (2014).
1580
Dereymaeker, G, Formalising the role of paralegals in Africa: A review of legislative and policy developments,
(2016) Cape Town, South Africa: Dullah Omar Institute (CSPRI).
1581
Part II of the Legal Aid South Africa Act (2014).
1582
Ministry of Lands Country Planning and the Environment, Draft National Land Policy of Sierra Leone version 6,
(2015).
1583
Davies, M, Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the Land
Legislation of Sierra Leone, (2015) Rome, Italy p. 25.
1584
Part V of the Legal Aid South Africa Act (2014).
270
Paralegals in Sierra Leone receive two weeks of intensive on the job training in law, government
processes and paralegal skills. All the paralegals have at least secondary education and some have
university degrees.1585 On the job training is continuous and paralegals are supervised by the Timap
directors. Timap’s paralegals are trained to mediate disputes, engage in advocacy and a certain level of
litigation and conduct educational activities in the community.1586
Scope of practice
The frontline service of Timap is rendered by community-based paralegals owing to the shortage of
lawyers. These paralegals employ an assorted set of skills, which aids citizens to in address a range of
justice problems.1587 Paralegals provide information on rights and procedures, assist with government
authorities and mediate disputes, which is the most common tool that is used.1588 The range of justice
problems include ‘intra-community breaches of rights (e.g. a father refuses to pay maintenance, or a
widow is wrongfully denied inheritance), as well as justice issues between people and their authorities
(e.g. corruption, abuse of authority, failures in service delivery)’.1589
The work of paralegals also includes dealing with domestic violence, child abandonment, economic
exploitation, employment related matters, education and health.1590 Anecdotal evidence also suggests
that paralegals monitor and observe proceedings in court, advise and prepare clients for appearance in
court, engage in post-war community peace building, are involved in outreach programmes, promote
accountability and contribute to community empowerment.1591 The unauthorised practice of the law,
which involves the paralegal, does not feature in any of the available literature. Professional
encroachment is thus less of an issue in Sierra Leone than in the more economically developed
countries.
Paralegalism in South Africa, with its dual legal system and a society that straddles the economic divide,
displays some characteristics of the practice as it manifests in the more economically developed
1585
1586
1587
1588
Maru, V, 'TIMAP for Justice: A Paralegal Approach to Justice Services in Sierra Leone' in Access to Justice in
Africa and Beyond: Making the Rule of Law a Reality (2007) Chicago, USA: Penal Reform International 139–143;
Dale, P, Delivering Justice to Sierra Leone’s Poor: An Analysis of the Work of Timap for Justice, (2009) Sierra
Leone: World Bank.
1589
Maru, V (2007); Dale, P (2009).
1590
Maru, V (2007); Dale, P (2009).
1591
Sesay, D (2014).
271
countries, as well as those on the African continent. The focus here is on community-based paralegals,
who are the most closely associated with access to justice.
9.9. CONCLUSION
Notwithstanding the dearth of literature on the community-based paralegal practitioner in South Africa,
there is clear evidence that these practitioners occupy a unique space in the South African legal
‘fraternity’, whether they are recognised or not. Community-based paralegal practice has evolved into
a comprehensive primary socio-legal service without which many poor individuals and communities
would have been unable to access, claim and enforce their rights. This practice spans the full spectrum
of primary legal services as defined in Chapter 2, which is made possible with donor funding and
volunteerism. Despite this, the paralegal policy reforms initiated by the State to date fall hopelessly
short of Justice Vision 2000. None of the recommendations for paralegals contained in this blueprint
were met and uncertainty remains around formal recognition of the paralegal practitioner.
The stalled legal reforms that the State initiated prompted the community-based paralegal sector to self-
regulate in respect of governance and education and training and to pursue policy reform more robustly.
The CAO Draft Bill, which was submitted to the Department of Justice and Correctional Services,
represents a promising start towards policy reform. However, this study has serious concerns about the
constitutionality of some of the proposals in the concept document. The proposed CAO Draft Bill,
although still in its embryonic stage, is highly restrictive on the scope of practice of the paralegal and,
as a result, detrimental to the right to equality in the legal process for all who need these services.
Paralegal services in the United States of America, England, Mozambique and Sierra Leone evolved,
mostly, from the quest to meet the need for access to justice among the poor. There is a distinct
difference between paralegal practices as they emerged in economically developed countries1592 and in
those of economically developing countries.1593 Meeting the conventional formalities of a profession
is less of a concern among the economically developing countries than their more developed
counterparts. Moreover, the community-based nature of the work of paralegals is a central feature
within the African continent.
Paralegal ‘professions’ in the two African countries do not always strictly subscribe to the conventional
features of a legal profession. These features include advice and service to the community in a
specialised field of training, a governing body that represents, controls, disciplines and sets minimum
1592
United States of America and England.
1593
Mozambique and Sierra Leone.
272
standards for entry and education, continuous update of education and training and a standard of ethical
conduct and performance. The nature of the service is highly contextual, which renders its scope of
practice heterogeneous and the nomenclature of the practitioner fluid. Paralegal practice, as it emerges
from the countries under examination, can nevertheless be classified into the following broad
categories:
- Paralegals who work in law firms, government departments and corporate entities, and who
perform a support role for lawyers and professional teams
- Paralegals who run their own for profit paralegal practices;
- Paralegals who work in the non-governmental and non-profit sector in support of lawyers in
the organisation; and
- Community-based paralegals who work with vulnerable communities in rural areas,

townships and informal settlements.
The first two categories would cover the majority of paralegals in the United States of America and
England. The last two categories reflect paralegal practices within the African continent, particularly in
Mozambique and Sierra Leone.
Due to the nature of paralegal practice in the United States of America and England, self-governance,
in the form of professional bodies that regulate, certificate and prescribe standards of education and
training for paralegals, is prevalent. However, the voluntariness of the membership of these
professional bodies remains a central feature.
In the USA rendering of paralegal services has been lawyer-driven and is thus closely connected to a
law office environment. Its governance structures are well developed, albeit for the most part voluntary,
while the practice involves legal advice and legal services, and there are minimum standards for entry
and education, whether per market demand or voluntarily regulated, as well as standards of ethical
conduct and performance. There is also evidence of opportunities for continuing professional
development. Parts of paralegal practice in England share the above features of its counterparts in the
USA, but a unique feature in England is the development of paralegal practice as a commercial
endeavour. Paralegalism in these two countries has bourgeoned into a well-established, recognised
professional service to the public at large although resistance to certain features of a profession such as
comprehensive regulation and licensure, is evident.
Paralegal practice in the African countries under review is driven by the developmental nature of the
service, which reflects its socio-legal function and the community-based focus thereof. It does not fit
273
the conventional mould of a professional service in respect of conventional minimum standards for
entry, as well as education and regulation. The practice has thus far mostly been project-based and
dependent on donor funding and volunteerism. This did not render the service any less essential in
these countries. Contrarily, in the absence of this service, many poor and marginalised individuals and
communities would be unable to empower themselves as economic actors in their own countries. They
would also be denied protection from abuse and unable to meaningfully participate in the developments
that affect them directly. This practice involves legal advice and service that is rendered subject to
standards of ethical conduct and performance. However, in Sierra Leone, for example, the recently
enacted Legal Aid Act expressly recognises paralegal services and has incorporated these services under
legal aid.
A lack of formal recognition in some instances affects the legitimacy of these practitioners although the
professionalisation of the sector, in accordance with the conventional mould of the legal profession
would not necessarily achieve that. Paralegal service on the African continent is diverse and the focus
is not only on defending rights but more importantly, on empowering rights holders to claim and enforce
their rights.
Community-based paralegal practice in South Africa will evolve constantly. At this stage of its
evolution, access to justice is better served if the practice evolves from a voluntary charitable service,
which is funded by donor funding only, to providing comprehensive primary legal assistance to
communities and individuals as an antithesis to the almost unfettered power of the high end fee paying
client. This should be funded from multiple sources which would lessen the financial burden on the
State. In so doing, it will assist in mitigating the power imbalance between vulnerable communities and
individuals on the one hand and conversely, powerful State and non-State actors.
South Africa has arguably led the institution of the paralegal on the African continent. However, it has
recently fallen behind its African counterparts in respect of regulatory reform. Paralegalism in South
Africa has the potential to span the practice as it manifests in the more economically advanced countries
in the study, as well as in those on the African continent. Policy reform should have due regard for this
unique feature of the South African paralegal landscape.
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PART VI
Conclusion
275
CHAPTER 10
CONCLUSIONS AND RECOMMENDATIONS
10.1. CONCLUSIONS
This study investigated whether the existing South African human rights framework creates scope for
the paralegal to improve access to procedural justice in civil matters and, as a consequence, contribute
to the transformation of the legal profession. It arrived at the conclusion that the human rights
framework both restricts and enables the practice of the community-based paralegal in the country. The
key challenge identified early in the study is the absence of a theoretical and philosophical framework,
not only in academic literature, but also policy documents which would define the transformation of
the administration of justice in the country. The literature and policy documents, therefore, did not
contain a philosophical and theoretical framework. This resulted in a definitional vacuum in some
instances and definitional ambiguity in others which this study first had to attempt to resolve.
The author’s critical reading of the goals and strategies of the transformation of the administration of
justice (Justice Vision 2000) and the mandate given to the State in the preamble to the Constitution
concludes that a legal empowerment paradigm would best describe the philosophical underpinnings of
the transformation of the administration of justice in South Africa. The various theories best aligned
with the goals and strategies of the transformation of the administration of justice were identified from
within this legal empowerment paradigm.
In a constitutional democracy such as South Africa, the relationship between the State and its citizens
is defined by a social contract which is codified in the Constitution. The legal empowerment approach
and the transformation agenda mandated by the Constitution assisted in addressing the definitional
vacuum and ambiguity for the purpose of this study. Access to justice in South Africa thus denotes
substantive as well as procedural justice and the latter is considered to be measured against the capacity
of individuals and communities to pursue, claim and enforce their rights. Legal services are framed
within the context of legal assistance and denote a continuum of services involving the provision of
legal information, advice, support and representation that spans both primary and secondary legal
services. These services could be rendered by a legal or paralegal practitioner, depending on the
complexity of the matter or the risk to the client. The paralegal in South Africa is defined as a person
with or without formal legal training, who renders basic legal and quasi-legal services with or without
reward. Legal assistance at the expense of the State is regarded as legal aid.
276
The transformation of the legal profession was a key feature of the transformation strategy involving
the administration of justice. The transformation of the legal profession reflects characteristics of a
symbiotic metamorphosis and can therefore be described as an evolutionary process of reconstruction
of the existing regulatory framework in order to guarantee access to a reformed institutional framework
that gives effect to the values of a democratic and constitutional order centred on the emancipation of
its citizens.
This study also considered a number of key features of access to justice in an attempt to answer the
research question. It focused on the substantive legal framework that codifies access to justice, the
institutions and human resources that support it and the values and attitudes that are conducive to access.
In so doing, it endeavoured to determine the scope that currently exists for the paralegal to contribute
to access to justice and the transformation of the legal profession in South Africa.
The triumvirate of interrelated values namely human dignity, equality and freedom animates the new
democratic order in South Africa and shapes a human rights-based approach to access to justice. Each
of these values, to a greater or lesser extent, permeates every right in the Bill of Rights. These values
are also expressly entrenched in distinct waymarks in the Constitution and find expression in substantive
provisions within the Bill of Rights. These interrelated values and related substantive rights inform the
manner in which the Bill of Rights is interpreted.
The focus within the substantive legal framework of access to procedural justice in civil matters in this
study is on section 34 of the Constitution of South Africa. This provision, like all other provisions in
the Bill of Rights, is informed by an international and regional framework, embodied, among others, in
the UDHR (Universal Declaration of Human Rights), the ICCPR (International Covenant on Civil and
Political Rights) and the ACHPR (African Charter on Human and Peoples’ Rights). The right of access
to dispute resolution fora is considered to be a pivotal precept of the right to procedural justice without
which the guarantees and protections contained in human rights instruments would be worthless. The
core features of the right to procedural justice that emerge from the international and regional arena
include the right to equality before the courts and tribunals, a fair and public hearing and a competent,
independent and impartial tribunal. These guarantees apply to both criminal and civil proceedings. No
direct reference to paralegals is made in these instruments but a body of soft law has developed that
entrenches the role of paralegal practitioners in the delivery of access to justice for the marginalised and
the poor.
Section 34 of the Constitution of South Africa contains the right to procedural justice in civil matters.
It does not prohibit current community-based paralegal practice neither does it preclude an expansion
of such a practice. To the contrary, where such practice results in removing barriers to access to justice
277
and improving access for all, but especially vulnerable communities, the practice would be in
compliance with the transformation agenda of the Constitution and give effect to the substantive rights
of human dignity, equality and freedom. However, South Africa is not immune to the malaise of many
other countries, where the legal reforms fall short of expectations, either due to shortcomings in their
design and/or problems in its implementation. Section 34 fails to codify the right to a fair hearing in
civil matters in sufficient detail, leaving it up to the courts to formulate the key features of the right as
and when the opportunity arises.
A key feature of the right to a fair hearing is the right to legal assistance. A critical reading of section
34 through the prism of the triumvirate of values that animate the new democratic order is guided by
the constitutional waymarks that entrench these values. Such a reading invites the interpretation of
section 34 to include the right to legal assistance, rendered by a legal or paralegal practitioner, where
appropriate. The State, therefore, has a constitutional obligation to fund legal assistance where the
interest of justice so requires. Although the ICCPR and the ACHPR stop short of expressly conferring
the right to legal aid in civil matters under any circumstances, a body of soft law has developed that
requires legal aid where it is required by the interest of justice.
Subsidiary constitutional legislation and related delegated legislation both enable and restrict the
contribution of the paralegal to enhance access to justice in South Africa. LASAA (Legal Aid South
Africa Act), for example, is couched in wide enough terms to include legal assistance as a continuum
of primary and secondary legal services at the expense of the State. It also expressly makes provision
for the employment of paralegals although their scope of practice is not defined. However, in practice,
legal aid in South Africa is mainly centred on criminal matters, secondary legal services, the courts and
the narrow legal profession. Limited provision is made for paralegal assistance and primary legal
services, where the need is concentrated. The practice contradicts the statutory framework of LASAA
and falls short of a legal empowerment paradigm that encourages paralegal assistance. The skewed
allocation of the limited resources may be regarded as a breach of the social contract between the State
and its citizens and an infringement of the right to equality and the right to a fair hearing. LASA (Legal
Aid South Africa), has thus far not incorporated existing community-based services into the legal aid
fold, as is the movement currently across the African continent.
The transformation of the legal profession is a central feature of the transformation of the administration
of justice which is intended to facilitate the transformation of South African society by increasing access
to justice. The legal reforms in the legal profession are therefore intended to aid that transformation.
However, the Legal Practice Act falls short of this transformation agenda in respect of the paralegal. It
relegates the formal recognition and the professionalisation of the paralegal to an indeterminate time in
the future and defines the legal profession along conventional lines, restricting membership to advocates
278
and attorneys. This leaves community-based paralegals, who are at the coalface of the suffering of the
poor and the marginalised, on the fringes of the ‘legal fraternity’ dispensing with an obligation that is
essentially that of the State, namely, to make justice accessible to all. Comprehensive primary legal
services are left dependent on donor funding and volunteerism.
The ‘Community Advice Office Draft Bill’ (‘CAO Draft Bill’), proposed by the community-based
paralegal sector, which is intended to codify the role of the community-based paralegal in South African
society made a promising start towards the formal recognition of the paralegal practitioner. However,
this concept document is more restrictive on the scope of practice of the community-based paralegal
than the Legal Practice Act, which does not address the scope of practice of the paralegal practitioner
at all. In the absence of donor and/or State funding, community-based paralegal services are reduced
to a pro bono service under this ‘CAO Draft Bill’. This has serious implications for the sustainability
of the service and thus does not assist in enhancing access to justice for the marginalised and the poor,
contrary to the purpose of the ‘CAO Draft Bill’.
Chapters 8 and 9 of the Constitution also make provision for an institutional framework supporting
access to justice that spans a network of courts, tribunals, commissions, state institutions supporting
constitutional democracy and alternative dispute resolution fora. Most of the proceedings in
conventional courts are complex and preclude paralegal assistance. Therefore, regulations such as the
rules of the conventional courts confine legal representation mainly to representation by an advocate or
attorney. The small claims courts, for example, preclude paralegal representation, even though
paralegal assistance may be appropriate under the circumstances. In some instances, therefore, these
restrictions are more onerous than its intended purpose and presents systemic barriers to access to justice
by excluding the paralegal practitioner. However, there are a number of specialist tribunals, such as the
CCMA (albeit indirectly), and courts, such as the labour courts and the equality courts, that permit
representation by persons other than members of the narrow legal profession, which includes
representation by paralegal practitioners.
Efforts to codify alternative models for dispensing justice such as the Traditional Courts Bill have also
fallen short of implementation, resulting in a disconnect between the law and parts of the South African
Society. These communities have suffered particular disadvantages under the previous regime.
Legal assistance is defined beyond legal representation in a judicial or quasi-judicial forum. In

contemporary, highly regulated South African society, it is imperative for every citizen to have a basic
understanding of the law to obey it or rely on it for protection. The lack of knowledge of the law
deprives it of its deterrent effect, leaves citizens without redress and undermines the new democratic
order. Where vulnerable communities function in the shadow of the law but the shadow function of the
279
law is inaccessible to them, the impression settles in the minds of the marginalised and the poor that the
law is the problem, with serious consequences for peace and stability in the country.
The Access to Justice and Promotion of Constitutional Rights Baseline Survey found that the
foundational values of human dignity, equality and freedom do not necessarily manifest in the attitudes
of the citizens of the country whether they were historically disadvantaged or not. The apartheid
dispensation prior to 1994 institutionalised discrimination, abuse of power and exploitation and wove
it into the very fabric of South African society. Strategies to enhance access to justice lacks insight if
they are informed by an assumption that these conditions have changed more than two decades into
democracy because the substantive legal framework has been dismantled and the institutions have
changed. The gap between the law and the people is real and reliance on the narrow legal profession
and justice sector thus far failed to empower the disadvantaged and to entrench these foundational
values.
The State has acknowledged that it will not be able to narrow this gap without the aid of civil society.
Community-based paralegal practitioners who currently perform a socio-legal function within
communities, are strategically positioned to assist in narrowing that gap. Their function is nevertheless
hampered by their dependence on donor funding and volunteerism, the lack of formal recognition and
the failure to incorporate these services into the statutory framework of legal services and legal aid
within the country. The aforementioned conclusions thus lead to the following recommendations.
10.2. RECOMMENDATIONS
The State has committed itself to establishing a more egalitarian and just society. It is therefore
axiomatic that addressing the justice needs in South Africa requires a multi-pronged, multi-level
approach. To date, the State has involved three pillars extensively, namely, social assistance, health
and education. Legal assistance in civil matters has been included to a limited extent. The right of
access to procedural justice, which includes the right to legal assistance, is instrumental in bringing
about substantive justice. The justice gap in South Africa has to be reframed as a social issue that
extends beyond the legal system. Greater investment in this fourth pillar, namely, legal assistance, and
integrating it with efforts in health, education, and social development, coupled with economic
development may assist the State in meeting its commitment and will create scope for the paralegal
practitioner as a facilitator of access to justice. The recommendations will therefore focus on the
conceptual framework for the administration of justice; human resources, infrastructure and institutions;
education and training; research and the paralegal profession.
280
A philosophical and theoretical paradigm for the transformation of the administration of
justice
A paradigm for the transformation of the administration of justice has to be adopted which will clarify
the theoretical and philosophical context that informs the transformation and define the nature of the
relationship not only between the State and its citizens but also the State and the narrow legal profession.
The State should therefore adjust its strategies for transformation in accordance with that theoretical
and philosophical framework. Existing strategies and policies seem most closely aligned to the
symbiotic metamorphosis model of transformation and policy documents need to reflect this more
clearly.
It has been argued in this study and there is precedent within the country and beyond for a paradigm
shift from the narrow interpretation of the rule of law(yers) to a legal empowerment paradigm that
involves the paralegal. The adoption of this theoretical and philosophical paradigm may also assist in
clarifying the roles and responsibilities of stakeholders in this transformation process. However,
definitional ambiguity may persist in some instances.
The substantive legal framework and institutions that support access to justice
The Department of Justice and Correctional Services should reconsider its almost exclusive investment
in secondary legal services and the expensive machinery that accompanies it. Redirecting its limited
resources to primary legal services where the need is the greatest presents a more efficient and cost-
effective way in meeting the State’s obligation under the social contract and its constitutional obligation
to provide access to procedural justice. LASA should thus expand the existing portfolio of legal services
to include a financially sustainable, primary legal service model that can be taken to scale.
The patchwork of basic legal services that is currently rendered by non-government institutions with its
exclusive dependence on volunteerism by paralegal practitioners and donor funding has to be
transformed into a comprehensive, integrated government-funded initiative. Limited resources of the
State may require funding on a continuum. Central to this initiative is the transformation of legal
assistance. This transformation requires the unbundling of legal services so that the legal matter is
directed to the most efficient and cost-effective service provider, which includes the paralegal.
The provision of legal assistance in civil matters on a case-by-case basis is not a feasible and sustainable
model. This right has to be codified and expressed as a fundamental human right subject to similar
criteria as the right to legal assistance in criminal matters and consideration should be given as to how
paralegal services can provide a more cost effective alternative to those rendered by attorneys. The
281
codification of this right does not require constitutional amendment. It requires delegated legislation to
reflect the criteria endorsed by the Constitutional Court and proposed by the Principles and Guidelines
on the Right to a Fair Trial and Legal Assistance in Africa.
The potential of customary forms of justice needs to be unlocked and aligned to the new constitutional
democratic order. The Traditional Courts Bill therefore needs to be aligned to the Constitution and
enacted to give effect to the State’s constitutional mandate. The value of the community-based
paralegal practitioner in this process and the potential for meeting the justice needs of rural communities
cannot be underestimated and needs further investigation.
The rules of the courts and other adjudicating mechanisms must be reviewed in order to determine to
what extent these rules present systemic barriers to access to justice by precluding paralegal
representation.
Legal education and training
Basic legal literacy should be included in the basic education curriculum and the educators that are
involved in it should undergo basic training in legal education. Aspects that are fundamental to basic
legal literacy include civics and human rights education, basic family law and consumer education.
Law faculties at universities need to re-imagine the role of law graduates in delivering access to justice
and deans have an important leadership role to play in this regard. Law curricula need to be re-examined
and focus beyond the narrow legal profession and academia. The cost of legal education has to be
addressed and law faculties have to assist in creating employment opportunities for their own graduates.
Universities of Technology need to re-examine their curricula and bring paralegal education firmly into
the domain of higher education. They further have to explore the use of technology in delivering access
to justice more cost-effectively and efficiently.
Law faculties and departments at post school institutions should pay greater attention to the national
policy framework on post school education which has as its focus one single, integrated post-school
system. Articulation from the Occupational Qualifications Sub framework to the Higher Education
Qualifications Sub framework should form an integral part of curriculum development in the legal
sciences. This would enhance the education and training of the paralegal practitioner, assist in
addressing the challenges in law curricula and create pathways for articulation on a continuum.
282
Research
The State should redirect funding for research to evidence-based information on community-based
strategies. Social impact research would enable decision makers to monitor and evaluate interventions
such as taking basic legal services to scale and deploying paralegal practitioners. Determining the
unmet legal needs of individuals and communities and the incidence of self-representation will assist in
directing legal assistance where it is most needed.
There is therefore a need for applied and multidisciplinary research in alignment with Sustainable
Development Goal 16.
The paralegal profession in South Africa
The State should maximise the potential of the paralegal practitioner as a tool for legal empowerment
through express statutory recognition and funding. This may require safeguards in the form of
registration, certification and/or licensure. However, these safeguards should not be so onerous that it
defeats the very purpose of the service. Forging partnerships with existing structures within the
community such as community advice offices can assist in professionalising the sector and taking basic
legal services to scale.
Paralegal regulation should specifically address its nomenclature, governance, education and training
and scope of practice.
283
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ABBREVIATIONS
AAfPE – American Association for Paralegal Education
ABA – American Bar Association
ACAOSA – Association of Community-based Advice Offices of South Africa
ACHPR – African Charter on Human and Peoples’ Rights
ADR – alternative dispute resolution
AJLC – Access to Justice Law Center
AU – African Union
BLA – Black Lawyers Association
CABx – Community Advice Bureaux (CABx)
CAOs – Community Advice Offices
CCMA – Commission for Conciliation, Mediation and Arbitration
CEDAW – Committee on the Elimination of Discrimination against Women
CFJJ – Centre for Juridical and Judicial Training
CHE – The Council on Higher Education
CILEx – Chartered Institute of Legal Executives
CLE – community legal education
CLEP – Commission on Legal Empowerment of the Poor
CLSA – Courts and Legal Services Act
COBs - Community Oversight Boards
CODESA – Convention for a Democratic South Africa
CTV – Centro Terra Viva (CTV)
DUAT – allocate dereito de uso e aproveitemento de terra (the right to use and exploit the land)
FAO – Food and Agriculture Organisation of the United Nations
FET – Further Education and Training
GCB – General Council of the Bar
HEQC – Higher Education Quality Committee
314

The Paralegal and The Right of Access To Justice in South Africa

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The Paralegal and the Right of

Access to Justice in South Africa

Noleen Leach neé Noble

A THESIS SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS

Supervisor: Professor J. Mujuzi

Submitted: March 2018

Access to the courts

Alternative dispute resolution fora

Date: June 2017

I thank the following institutions and persons:

PART I: INTRODUCTION, RATIONALE, PHILOSOPHICAL FRAMEWORK AND

PART II: THE CONSTITUTIONAL VALUES THAT SUPPORT ACCESS TO JUSTICE IN

PART III: THE SUBSTANTIVE LEGAL FRAMEWORK OF ACCESS TO PROCEDURAL

PART IV: THE INSTITUTIONS THAT SUPPORT ACCESS TO JUSTICE IN SOUTH

PART VI: CONCLUSION

BIBLIOGRAPHY ............................................................................................................................. 284

Introduction, Rationale, Philosophical Framework and Definitions

INTRODUCTION AND RATIONALE FOR THE STUDY

‘long delays, severe limitations in existing remedies provided either by law or in

1.2. RESEARCH QUESTION

1.3. RESEARCH OBJECTIVES

Part I provides the introduction to the study. It contains two chapters.

Part VI consists of Chapter 10 which contains the conclusions and recommendations.

PHILOSOPHICAL FRAMEWORK AND DEFINITIONS

2.2 WHAT IS ACCESS TO JUSTICE?

Traditional schools of thought

Access to justice in South Africa

Legal empowerment, as a development objective (aim) as well as an outcome (result), is considered to

2.3 WHAT IS LEGAL EMPOWERMENT?

- Strengthening the capacities and power of disadvantaged.

Legal empowerment constitutes first, at a conceptual level, an expansive interpretation of access to

2.4 LEGAL EMPOWERMENT IN SOUTH AFRICA

2.5 THE PARALEGAL DEFINED

‘a person qualified by education, training or work experience who is employed or

The Commission on Legal Empowerment of the Poor (CLEP), an independent international

In the Legal Aid Act206 paralegals are defined as:

2.6 LEGAL SERVICES DEFINED IN SOUTH AFRICA

2.7 LEGAL ASSISTANCE DEFINED IN SOUTH AFRICA

2.8 A LEGAL SERVICES FRAMEWORK IN SOUTH AFRICA

2.8.1 Information service

2.8.2 Advisory service

2.8.4 Representation service

2.9 WHAT IS LEGAL AID?

2.10 WHAT IS A LEGAL REMEDY?

The Constitutional Values that Support Access to Justice in South Africa

THE VALUES OF HUMAN DIGNITY, EQUALITY AND FREEDOM IN THE SOUTH

3.2. HUMAN DIGNITY

3.5. THE WAYMARKS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH

‘... [Transformative constitutionalism] connotes an enterprise of inducing large-scale

The founding provisions

The Substantive Legal Framework of Access to Procedural Justice in Civil Matters in

INTERNATIONAL LAW AND THE RIGHT OF ACCESS TO PROCEDURAL JUSTICE IN

4.2. THE INTER-RELATIONSHIP BETWEEN DOMESTIC AND INTERNATIONAL

4.2.1. The monist-dualist dichotomy

4.2.2. International Human Rights Instruments

4.2.3. The Constitution of the Republic of South Africa, 1996

4.3.1. The Universal Declaration of Human Rights

4.3.2. The International Covenant on Civil and Political Rights

The right of equality before courts and tribunals