A critical analysis of civil legal aid in South Africa

Paper presented at the 2013 CLEA Conference in Durban

Dave Holness
Director of UKZN Law Clinic
University of KwaZulu-Natal

“A system of justice that closes the door to those who cannot pay is not deserving of the name.”

Our law and legal system can and should be a vehicle through which the lives of all those resident in South African are enhanced through the protection and promotion of the rights guaranteed in the Bill of Rights. This paper, which reflects on work undertaken by the author as part of doctoral degree research, will focus on legal aid service delivery for the indigent by and through registered law clinics in civil rather than criminal matters. There are considerable gaps between the proper access to civil justice imperatives of constitutional South Africa and the status quo. As has been aptly asked:

“But what happened to all the justice reforms promised to us … to provide equality before the law, such as, in civil cases where cost rather than justice, often remains the deciding factor?”

Law as a vehicle for necessary positive change in the daily lives of South African residents is pertinently considered within the country’s socio-economic climate of considerable inequality.

Existing research and court precedent reflect upon the role of access to justice as a significant catalyst for a more equal and just society. If one has the financial means to procure (expensive) legal representation, access to justice (in so far as the facts and law allow) is readily attainable. Conversely, ‘access to justice’ in civil matters is likely to be denied through a lack of legal representation where a litigant cannot afford the cost of a legal representative and no adequate alternative is provided. Such an unfortunate, unrepresented person faces a high probability of being denied meaningful access to an intimidating and complex legal system. A corollary to such vulnerability is the threat to other legal rights; because such persons are rarely able to use the law to ensure the respect, protection and promotion of their legal rights.

The paper will focus on legal aid services in civil and not criminal matters for two main reasons. Firstly, the vast majority of legal aid in South Africa is provided in criminal and not civil matters. In addition to Legal Aid South Africa (LASA), there are admittedly other South African legal aid service providers, such as the various university law clinics, plus legal non-governmental organisations like the Legal Resources Centre and Lawyers for Human Rights which focus on civil rather than criminal matters. However, the case numbers of the categories of legal aid / law clinics referred in the previous sentence are very small when compared with LASA. Furthermore, the very limited geographical location and staffing of these specialised non-governmental civil legal aid providers and university law clinics, allied with their ordinarily accepting only very specific categories of matters, means that the matters they do take on do little to change the overwhelming legal aid focus in South Africa on criminal matters.

This paper will consider this constitutional imperative for the provision of free legal services in civil matters for indigent litigants, for example in Sections 9 and 34 of the South African Constitution. Whilst Section 35 of the Constitution makes special provision for fair trial rights of criminal accused, including far-reaching rights to legal representation in criminal matters (at state expense in particular circumstances), Section 34 casts the net wider in providing for the right to fair judicial adjudication in all matters, including civil disputes. The need for civil legal aid (or some other form of free legal assistance) is paramount in a complex legal system wherein an indigent litigant’s prospects of successfully bringing or defending their civil case themselves is very small, or there exists a lack of knowledge of a legal right or how to exercise such a right. Where someone lacks money for civil representation in such circumstances, such a person’s Section 34 rights are very likely to be denied to them in the absence of adequate free legal services. Furthermore, section 9 of the Constitution guarantees equality both before the law and in its application. Notwithstanding any constitutional argument, the aforementioned statistics have shown that the vast percentage of state financial resources being ploughed into legal aid in South Africa is in criminal rather than civil matters. This in itself makes a study on civil legal aid in this country relevant and valuable.

Beyond the provision of criminal legal aid (which only applies to a small percentage of the total population when criminally charged for relatively serious offences), access to justice must also ensure adequate legal protection and assistance for indigent persons to protect and exercise their legal rights in civil matters.

“… legal aid (should) provide a range of legal resources to promote citizenship for citizens generally, and especially for the poor. That is, whether the legal resources which are necessary for citizens to mobilise the law have been provided by legal aid.”

This study will consider what registered, free legal resources need to be in place to allow indigent persons to have meaningful access to and protection of the law in civil matters. This analysis will focus on existing institutions with a dedicated legal aid mandate, namely ‘law clinics’ as defined in the relevant legislation. The study will also consider alternatives to ‘conventional’ civil legal aid by legal aid organisations themselves; that is other free legal service provision options for law clinics- such as partnerships with private lawyers through the latter performing pro bono work.

The second reason for this study’s focus on free legal services for the indigent in civil and not criminal matters is a pragmatic one; there has been considerably less case authority and academic analysis on legal aid for the indigent in civil matters than has been the case for criminal matters.

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