ACCESS TO JUSTICE IN WELFARE LAW AND LITIGATION: JUDICIAL REFORM IN SOUTH AFRICA

Abstract

The paper argues that extensive judicial reform is still required in order to ensure true access to justice for the millions of people dependent on welfare in South Africa. Courts have to be more forceful in their insistence on compliance by government with their very orders – so as to avoid a situation where the required redress is still wanting, years after a judgment had been handed down. On the other hand, it may require curtailing the unnecessarily wide ambit of powers and discretion given to government in the empowering legislation. Furthermore, some of the provisions of the 2004 legislation and the accompanying regulations still do not accord with theconstitutional framework of welfare entitlement and the binding impact of the constitutional jurisprudence. Also, it is of crucial importance to ensure that welfare applicants and beneficiaries have proper access to the judicial system. For this reason it is imperative to direct a sufficient part of publicly-provided legal aid to these people and to embark upon a comprehensive reform of the framework of welfare adjudication, in the sense of establishing an alternative dispute resolution mechanism. Also, still to be addressed are matters which go to the very substance of the system of social security provisioning in this country. The most important of thesematters requiring intensive legal reform relates to finding ways and means to achieve the meaningful and progressive extension of social security protection to the millions who are, due to very nature of the system, excluded from the social security framework.