This essay aims to discuss the lack of access to justice due to the cost of legal representation in South Africa, show why and how it is a problem, explain why it is a problem that philosophy of law should be interested in and present possible solutions to this problem.
Access to justice is a fundamental human right and one of the principles of the rule of law, therefore it is majorly problematic not only economically but also socially and philosophically when it is not supplied to those who need it most. When there is no access to justice, the people do not have any reasonably attainable way of fighting against discrimination, confronting injustice, exercising their rights or holding those in power accountable for their actions (United Nations, 2018). As a member state of the United Nations, South Africa has the responsibility to take the necessary, reasonable steps required to provide effective, non-discriminatory services that make justice/legal advice readily accessible to all of its citizens (United Nations, 2018). As both financial restrictions and legal matters are an issue for most people in South Africa at some point in their lives, the lack of access to justice is a far reaching issue which affects not only the impoverished, but the middle and upper class as well (McQuoid-Mason, 2013). This issue must be addressed as soon as possible in order to promote and uphold the rights and best interests of the population at large.
The study of the nature of the law not only depends upon but contributes towards many philosophical questions related to morality, justice, rights, human nature, social values and politics. (Encyclopaedia Britannica, 2017) This means that the study of any facet of the law has the potential to be at least philosophically interesting and at most integral to multiple other areas of philosophical study. This issue specifically can be seen as not only a legal one but also a moral, political and social one as access to justice or a lack thereof has such far reaching and highly impactful effects on people of different races, socio-economic classes and from varying backgrounds.
Currently, there are multiple systems being employed in South Africa in an attempt to combat the costs of legal representation and through that the lack of access to justice being caused by it, unfortunately these systems are not without issues of their own. Pro bono work can be helpful when it is done, however it is not compulsory for practicing lawyers and is therefore not widely performed. The Judicare system can only be effective if the administration is done properly, unfortunately the administration is currently so poor that the state has at times taken years to financially compensate these lawyers for their time which has led to a general lack of willingness of lawyers to continue to assist (McQuoid-Mason, 2000). The appointing of state-funded candidate attorneys in rural areas has proven to be effective as it has been both functional and affordable. In addition both state-funded and independent university law clinics have also proven to be effective as students/intern lawyers seem to be very enthusiastic about the experience provided to them whilst working there, therefore they are more willing to work hard for less or no pay (McQuoid-Mason, 2000).
Legislature is currently coming into effect that will combine the attorney and advocate professions into one singular profession, thereby allowing people to hire and pay for a single legal representative (Legal Practice Act, 2014). This legislature also requires the prescription of the requirement of community service to be rendered by practicing lawyers. However, though this Act was implemented in 2014, the changes made compulsory by the Act have been challenging to implement and its application has proven to be a lengthy process (Legal Practice Act, 2014). Considering this it is clear that it could still be many years before the Act fully comes into effect and is applied in its entirety.
The over-arching problem here is that there are simply not enough lawyers in South Africa to facilitate the above mentioned systems effectively (McQuoid-Mason, 2013). In light of this it can be stated that the issue of lack of access to justice due to the cost of legal representation can only be effectively corrected if there are enough lawyers available to assist with the currently implemented systems. Therefore it can be suggested that more people should be encouraged to enter the legal profession and then be provided with more assistance whilst completing their studies. With more practicing and student attorneys available, it could then be made compulsory for them to complete a set amount of legal community service at the aforementioned systems per year.
In conclusion, the identified issue can be considered a problem as it affects the basic rights of the people and is worthy of philosophical interest because the effects it has are not only legal and financial but also moral, ethical and political. Currently there are solutions being developed and to assist with this, the amount of lawyers being produced must be increased, as well as compulsory community service hours being required of them.