High litigation costs deprive the poor access to justice

November 1st, 2018

Deputy Judge President of the Local Division of the High Court in Johannesburg, Phineas Mojapelo, spoke at the annual general meeting of the Johannesburg Attorneys Association on 12 September in Johannesburg.

By Kgomotso Ramotsho

Deputy Judge President of the Local Division of the High Court in Johannesburg, Phineas
Mojapelo, said the cost of litigation is depriving the poor from access to justice. He was the guest speaker at the Johannesburg Attorneys Association annual general meeting on 12 September in Johannesburg. He said although there are organisations such as Legal Aid South Africa (Legal Aid SA) and ProBono.Org, there is still more that the legal profession needs to do, to make access to justice a reality for the poor.

Deputy Judge President Mojapelo said South Africa (SA) remains one of the most unequal societies in the world with a highly skewed income distribution. He added that the gap between the rich and poor grows each year and it is undeniable that poverty is an epidemic in SA. He pointed out that there cannot be access to justice in the face of poverty, unemployment and inequality. He noted that access to justice is an essential imperative in the country’s post-Apartheid era.

Deputy Judge President Mojapelo said the Constitution introduced various measures to enhance access to justice to the most vulnerable. He added that the existence of state funded legal aid and donor funded non-governmental organisations such as ProBono.Org and clinical entities at universities, have gone a long way in addressing economic disparities in accessing legal services. He noted that through these structures and measures a tradition has been created where the poor seek and use formal legal services.

Deputy Judge President Mojapelo said despite the good work done by organisations such as Legal Aid SA and ProBono.Org, there are still gaps. He added that some of the institutions he mentioned prioritise criminal law and focus on social challenges, socio-economic rights and civil matters, damages inflicted on one person by another, etcetera. He pointed out that there are citizens, who according to the means test, are not ‘poor enough’ to receive assistance from these institutions. This means there is a gap that is being overlooked.

Deputy Judge President Mojapelo pointed out that according to the United Nations Development Programme, access to justice is more than the ability to obtain legal representation and have access to the courts. He said it is the ability to see and obtain the remedy per grievance through an institution, be it formal or informal. ‘Access to justice has evolved from an ordinary concept that refers merely to the ability to gain access to legal services and state services such as the courts and tribunals to a wider concept that encompasses social and economic justice,’ Deputy Judge President Mojapelo said.

Deputy Judge President Mojapelo noted that the importance for one to access justice cannot be understated. He added that access to justice must be understood as a public good that serves more than private interest. He pointed out that the courts play a significant role in this regard and the court plays a part in the sense that citizens in the country live in an orderly society where they have rights and protection. ‘These rights and protections can be made good. If society is governed by the rule of law, the courts provide communities defence against arbitrary government action. They promote social order and facilitate peaceful resolutions,’ Deputy Judge President Mojapelo added. He said the courts – in publishing their decisions – communicate and reinforce citizens with values and norms in providing civil justice.

Deputy Judge President Mojapelo pointed out that justice must not only be done, but must also be seen to be done. He added that the preamble to the South African Constitution envisions a society based on democratic values, social challenges and fundamental human rights. Every citizen is equally protected by the law and commits to improve the human dignity, the achievement of equality and advancement of human rights and freedom.

Deputy Judge President Mojapelo said the Constitution additionally imposes a positive duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights. He added that s 34 prescribes that everyone has the right to have any dispute that can be resolved by the application of law, decided by the third public hearing before the court. He noted that access to justice in s 34 has been interpreted by some academics as requiring a legal institutional framework that better serves the whole population and makes good on constitutional promises of genuine socio-economic advancement. ‘To other academics, the right to a third civil trial imposes upon legal practitioners and law students, which is to do pro bono work. Social justice is, therefore, much broader than what litigants get from the course. Accessing and delivering justice are not tasked to be delivered by government alone, for justice to work the society must be involved,’ Deputy Judge President Mojapelo said.

Deputy Judge President Mojapelo added that rendering of pro bono services is largely dependent on good will and social scruples of a few well-intentioned legal practitioners. He said over the years the attorney’s profession has attempted to change this, he pointed out that the rules of the profession make it compulsory for attorneys to provide pro bono work.

Deputy Judge President Mojapelo said there must be an environment where legal practitioners see the law and the legal system as the vehicle through which the lives of citizens are enhanced by way of the protection and provision of rights guaranteed by the Bill of Rights. He added that the modern legal system is not a cow to be milked, but a heritage to be nurtured and preserved as a guaranteed continued existence of civilisation. He pointed out that law is a powerful vehicle to effect positive change in an unequal society, by making legal service accessible.

‘I would like to warn legal practitioners on being litigation funders, there is a frame-work of the contingency fee supervision. If you become a litigation funder you could expose yourself to liability for costs in the event of an unsuccessful litigation. I invite the legal profession to rigorously exercise its review powers under the Contingency Fees Act 66 of 1997,’ Deputy Judge President Mojapelo said. He added that the intention is not to prevent legal practitioners from earning a living, but to keep the process between acceptable limits, which will serve the poor who cannot afford legal services.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (Nov) DR 11.