Author and legal practitioner, Jason Brickhill, pointed out that access to justice serves as a vital bridge between the promises of the Constitution and people’s everyday lives. Mr Brickhill gave the keynote address at Probono.Org’s Annual Pro Bono Awards ceremony that was hosted by Norton Rose Fulbright on 20 February 2025 in Johannesburg. He told the recipients of the awards that the work they do is nothing short of life-sustaining for constitutional democracy and connects people to the Constitution, and turns paper promises into real-world rights.
Mr Brickhill said: ‘We live in an age where it is fashionable to decry that the Constitution has failed. There are two types of claims that are usually made, but they blend together in the public discourse to undermine constitutionalism and the rule of law. The first set comes from unprincipled politicians, the second from academics.’ He added that attacks on the Constitution from politicians are not new, nor unique to South Africa, but their temperature has risen and they have become more extreme.
Mr Brickhill pointed out that the attacks included calls to replace the Constitution with the Apartheid-era system of parliamentary supremacy, to strip away human rights protections – especially equality – and do away with the accountability powers of courts and Chapter 9 institutions. ‘These attacks are cloaked in unsubstantiated assertions – never supported by any evidence – that the courts are captured or racist or otherwise misguided. These assaults on the Constitution and constitutionalism must be exposed and resisted for what they are: Disingenuous attempts to avoid accountability for corruption and looting and to regain access to the feeding trough of state resources,’ Mr Brickhill added.
• Author and legal practitioner, Jason Brickhill, was the keynote speaker at the Annual Pro Bono Awards that were hosted by Norton Rose Fullbright.
Mr Brickhill said that the second set of critiques that he has identified is not obviously made in bad faith. He pointed out that it comes from a few academics trying to create a stir and gain attention. He added that these claims were in the nature of impugning the origins of the Constitution, and argued that it did not have popular support, it fundamentally compromised the interests of black people and marginalised communities, and that it failed to interrupt the Apartheid order.
Mr Brickhill noted that both sets of critiques are historically revisionist. ‘They ignore the sacrifices made by thousands of people in the liberation struggle. They ignore the history of armed struggle and internal resistance and mobilisation by communities, faith-based groups, trade unions and ordinary people. They ignore the United Democratic Front. They downplay the process of public consultation and the role of the constitutional assembly in the drafting of the text. Both sets of claims also generally avoid engaging at all with the actual text of the Constitution or any of the over 10 000 decisions (my current rough estimate) – including more than 1 000 Constitutional Court judgments – interpreting and applying it. Nor do they empirically investigate the actual on-the-ground impact of the Constitution,’ Mr Brickhill added.
Mr Brickhill said that despite being historically revisionist, ignoring the content of the law itself and offering no empirical evidence for their claims, both the bad-faith political attacks on the Constitution and the academic critiques have resonated with many people. He added that he often encounters law students drawn to nihilistic ideas that blame the Constitution, driven by an understandable desperation at the material conditions faced by so many of our people.
Mr Brickhill asked: ‘But is the prevailing poverty and inequality in South Africa a marker that the Constitution has in fact failed? And what is our role as lawyers, as politicians, as corporates, as businesses, as people with social and political power – importantly, as interpreters of the Constitution, in applying it on the ground?’ He added that it is easier to blame a document than to blame ourselves; easier to look for a quick fix – abolish the Constitution – than to recognise that we need to perform a thousand unglamorous daily tasks to realise the constitutional vision, that there is ever more work to do, that this is the grand project of a generation and not an instantaneous cheap victory. Even if there were a new constitution, replacing rights with magical widgets or some other concept, it would still require this careful dedicated work for it to actually work.
Mr Brickhill pointed out that the attacks on the Constitution are lent credence when people are unable to realise their constitutional rights, and especially when they cannot even enjoy access to justice. For them, rights become nothing but paper tigers. He pointed out that this is why pro bono services are so vital, why they are the lifeblood of constitutional democracy. He said that it is the quiet, unglorious task of providing legal assistance to an individual who could not otherwise afford it that creates the possibility for the Constitution to be made real in that one person’s life. ‘It means the difference between an experience of the law that respects a person’s dignity and agency, even if they do not succeed in court, and an experience that instrumentalises, brutalises and sometimes criminalises people,’ Mr Brickhill added.
For that reason, the choice that so many of you have made to work in the access to justice ecosystem matters.
Mr Brickhill touched on the ecosystem of access to justice. He said that legal practitioners are a part of a vibrant access to justice ecosystem made up of many different, uniquely valuable parts. In his presentation, he said that Legal Aid South Africa (Legal Aid SA) is the primary deliverer of legal aid and the vehicle through which the state fulfils its constitutional legal aid obligations. He pointed out that Legal Aid SA does this work through its justice centres, public defenders and all its other structures and programmes across the country. He added that Legal Aid SA prioritises criminal over civil provisioning, which he said leaves an enormous gap and need for civil legal aid. He pointed out that the gap is largely filled by civil society and the private profession.
Mr Brickhill noted that under the Legal Practice Act 28 of 2014 and its regulations, all legal practitioners – attorneys and advocates – must do at least 40 hours of pro bono or community service a year, and candidate legal practitioners must do eight hours. He added that in his own view this is not nearly enough. He shared that he spent different periods of his career across various spaces in this ecosystem, learning important lessons and shared his journey across the ecosystem.
Mr Brickhill pointed out that most of the rest of his career was spent in the public interest sector. ‘I spent eight years at the Legal Resources Centre and then three years at the Socio-Economic Rights Institute of South Africa (SERI). I was privileged to work with wonderful communities, the committed and vibrant social movements and special colleagues. It was during this time that I also got to argue the [Magidiwana and other injured and arrested persons v President of the Republic of South Africa and Others (No 2) [2014] 1 All SA 76 (GNP)] case, in which Makgoka J (as he was prior to his elevation to the [Supreme Court of Appeal (SCA)]) sitting in the North Gauteng High Court recognised and enforced the right to civil legal aid as a component of the right of access to courts. He approved a general approach that the right to civil legal aid arises in the following circumstances:
“(a) when the nature and type of inquiry demands that some or all interested parties be legally represented;
(b) when the interests of justice and the rule of law would be undermined by a failure to uphold the right;
(c) when the constitutional rights of parties or witnesses appearing before a commission are implicated or potentially threatened.”’
On appeal, both the SCA and the Constitutional Court held that the matter was moot and did not interfere with the High Court decision.
Mr Brickhill added that the state of the law is that the right of access to courts in s 34 of the Constitution includes a right to legal representation at state expense in the circumstances identified in Magidiwana. ‘Since then, however, we have not really pressed to enforce this obligation. Instead, the different parts of the ecosystem – from Legal Aid SA to civil society and the legal profession – have pressed ahead to do the best that they can with the resources available to them. ProBono.Org is connected to all of these role-players. It is the vertebra that connects the living parts of the ecosystem of access to justice. It connects the need for legal assistance among our people to lawyers and organisations able to provide it,’ Mr Brickhill said.
He pointed out that ProBono.Org knows – better than most – what services are available and where the real gaps are. Mr Brickhill said that the public interest sector has grown, with new organisations established over the last two decades to join the three established under Apartheid. He added that the university law clinics have continued their vital work despite cuts to university funding. While the paralegal networks have shrunk, many paralegal advice offices continue to serve the people in communities.
Mr Brickhill pointed out that ProBono.Org was created just under 20 years ago and has gradually grown and built relationships with private practitioners. He said that several of the large commercial firms have established dedicated pro bono teams and use their expertise and the excellent resources of these firms in service not of multinationals but of poor individuals and communities. He added that there is a lot to celebrate and it is not to be taken for granted. He, however, said that the gaps remain and the biggest gap is that – even with the expansive network that makes up the ecosystem – many people still cannot access pro bono services. And when this happens, a further gap opens up between the Constitution and the lived experience of people.
Mr Brickhill also spoke about the challenges of resources. He pointed that Legal Aid SA continues to have its budget tightened annually, and it is civil legal aid that suffers most. He said given that legal aid is a constitutional right, any restriction on it must be reasonable and pass muster under the limitations clause. ‘We need to monitor this and hold National Treasury accountable for its impact on the realisation of this right, just as we are starting to do as a society around education, health and social assistance,’ Mr Brickhill added.
Mr Brickhill noted: ‘I do not need to explain to most of you here tonight what a difference it would make if state resources could really be brought to be bear on providing access to justice, what more you could do if you could employ another lawyer or open a new office in a rural area to serve the local community; or, dare I say it, if you had a community intern each year paid by the state! As we work tougher to martial more resources and build our ecosystem, there is one very exciting idea that was born at last year’s Public Interest Law Gathering. Consensus was reached to start the process to create an association of public interest and pro bono lawyers of South Africa. If we can achieve that in 2025, it will allow the many voices of the ecosystem to speak as one on important issues.’
The ProBono.Org’s Annual Pro Bono Awards is an event that acknowledges the outstanding pro bono contributions of legal practitioners for a period of a year.
Winners of the Annual Pro Bono Awards.
The winners in the various categories of law at ProBono.Org were:
The following individuals received special mentions for their contributions to pro bono work:
Clerk of the Protea Children’s Court Busisiwe Mahlangu, advocate Ntombifuthi Mpofu, Neumann van Rooyen Attorneys and Puleng Tladi, Matthew Ilsley (Webber Wentzel), Elgene Roos and Jacquie Cassette of Cliffe Dekker Hofmeyr, Lesley Morphet of Fasken, advocate Birgit Brammer, Maponya Attorneys and MVC Incorporated.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
