Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?

Abstract

This chapter seeks to address the pressing question of how to improve access to justice in South Africa with a focus on socio-economic rights. It seeks to accomplish this through, firstly, conceiving of access to justice as a capability and exploring its importance. That, in turn requires attending to two central aspects: the internal dimension – empowering individuals to make claims – and the external dimension – relating to the design and availability of adequate institutional mechanisms to hear claims and adjudicate upon them. The chapter then considers practically the shortcomings in relation to access to justice in South Africa on both dimensions, internal – such as a lack of education – and external – such as the inadequate funding of chapter 9 institutions and the inability of Magistrate’s Courts to hear fundamental rights matters. Importantly, the institutions dealing with access to justice are conceived of holistically and include not only the courts but also the Public Protector and South African Human Rights Commission. Having analyzed the obstacles, the chapter seeks to consider solutions to these problems and makes concrete policy recommendations to enhance access to justice in the country. It draws on a comparative dimension from best practices in India and Colombia in making these recommendations. The recommendations include enhancing education and simplified procedures (such as the tutela in Colombia) on the internal dimension. On the external dimension, I consider expanding the capacities of chapter 9 institutions, creating specialist courts, expanding the jurisdiction of lower courts and distinguishing structural and individual cases.