By Nomfundo Manyathi-Jele

The Law Society of the Free State (FSLS) held its annual general meeting in Bloemfontein on 25 October 2013. The Legal Practice Bill and the draft uniform rules were discussed during the AGM.

On the evening preceding the AGM, the FSLS held a gala dinner where the Chief Operations Officer of the Department of Justice and Constitutional Development, Dr Khotso de Wee, delivered the keynote address focusing on access to justice.

Dr de Wee said that there were various factors that impede the realisation of constitutional rights. He said that Prof Sandra Liebenberg of the University of Stellenbosch had argued that these factors included, among others –

• budgetary constraints;
• a lack of capacity to ensure effective service delivery;
• a lack of knowledge and awareness among communities about their rights and how to enforce them; as well as
• inadequate support for communities to assist them to make optimum use of available resources.

‘Access to justice is a fundamental right that unlocks access to all the other rights enshrined in our Constitution. This right has the power to transform our society into a just and equitable one and to correct the injustices of our past. Especially in a relatively young democracy such as ours, access to justice, along with a strong rule of law and trust in the judiciary, is crucial to the development of the country and to the provision of socio-economic rights for the poor and marginalised,’ he said.

‘The famous Irish jurist, Sir James Mathew, once remarked that: “Justice is open to everyone in the same way as the Ritz Hotel.” In other words, it is open and accessible to all in theory, but not in reality,’ Dr de Wee said. According to Dr de Wee, Sir Mathew’s remarks were relevant for South Africa. He said that poverty had a direct impact on access to justice since South Africans who have little or no resources to access their rights were being deprived of basic services and any opportunity to attain a better life. ‘However, one must understand that the problem of access to justice is exacerbated by our history… . Gross poverty and inequality, the high cost of legal services and, to some extent, the remoteness of the law from people’s lives are all factors that exacerbate the situation. Despite the best political will in the world, it is simply unrealistic to expect 20 years of democracy to redress the wrongs of more than 300 years of colonialism and apartheid,’ he said.

Because of this, said Dr de Wee, South Africa’s socio-economic adversity dictates the need for a comprehensive system of legal assistance for poor people in order to allow their issues to be adequately articulated and to promote parity in the legal process. He said that the demand for legal services will be heavily influenced by the level of knowledge among the population of their constitutional rights. ‘Without knowledge it becomes impossible for people to exercise their rights or to hold the state to its duties,’ he said.

Dr de Wee shed light on ways to improve access to justice practically. He said that, on the part of the state, improving access to justice can be achieved by focusing on predominantly two areas, namely the courts and legal representation in the form of legal aid.

On the part of civil society, he said, access to justice, is achieved through the involvement of non-governmental organisations, the legal profession and community-based organisations, and by means such as advocacy, education, awareness and lobbying.

According to Dr de Wee, access to justice can be achieved effectively only if all prospective litigants have an unfettered right to bring a case before a court. He stated that access to justice was more than this. According to him, it is when a prospective litigant –

• is able to identify that he or she may be able to obtain a remedy from a court of law;
• has some knowledge about what to do in order to achieve access; and
• has the necessary skills to institute (or defend) the case and present it to a court.

Dr de Wee stated that recent studies have shown that the demand for legal aid from people who cannot afford private legal services will greatly increase in future. He added that there was a need to find other ways of making justice more accessible, such as providing for community service or placing a greater emphasis on pro bono work rendered by law firms.

Dr de Wee stated that the legal profession had an important role to play in making justice accessible. He urged attorneys to avail themselves to act as commissioners of small claims courts as this was a way in which attorneys could make a significant contribution to improved access to justice.

Dr de Wee said that one of the biggest factors why people do not institute legal action or do not defend their rights was because they could not afford to do so. ‘[W]e are aware of the provision of mandatory pro bono work by law firms, as run by the various law societies, but the amount of time and resources available for pro bono cases are simply not sufficient to meet the demand’, he said, adding that one of the ways the Justice Department was trying to make the legal profession more accessible to people was by way of the provisions of the Legal Practice Bill.

Dr de Wee said that the legal profession was on the threshold of major changes with the imminent finalisation of the Bill. He added that there were some who would say that the Bill was unnecessary – that there was nothing wrong with the legal profession that needed to be fixed. ‘A few go further to claim that this Bill will destroy the independence of the profession or that the changes will destroy the professionalism of the attorneys and advocates,’ he said.

He then highlighted a few facts about the South African justice system. ‘We come from a British common law system and when it comes to the legal profession, comparisons need to be made with other British Commonwealth countries. Reform of the legal profession is something that has been happening in almost all the larger countries of the Commonwealth. Britain it­self – in its component parts of England, Ireland, Scotland and Wales – has been reforming the profession on an on-going basis. In Nigeria, Kenya, Zimbabwe and Namibia the distinction between the Bar and Side Bar was abolished. The same situation applies in New Zealand and parts of Australia. Legal reform is a vital and integral part of a maturing democracy,’ he said.

Dr de Wee said that the Justice Department and the legal profession needed to change the way they think about the law. He said that law was a dynamic and ever-changing field of study that must adapt to meet the changing needs of society. ‘We need to sit down and think creatively about the law and the legal system, so as to constantly evaluate whether the system is indeed meeting the needs of our people and in what ways we can improve access to justice for all,’ he said.

Dr de Wee concluded by saying that in law the Constitution is usually a good place to start.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2014 (Jan/Feb) DR 10.