Political rights since 1994 Focus: Closing the doors of justice: An examination of the Constitutional Court’s approach to direct access, 1995-2013
Authors Jackie Dugard
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; and Honorary Senior Researcher, Socio-Economic Rights Institute of South Africa (SERI)
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 112 – 135
Across the developing world one of the structural mechanisms adopted to facilitate access to courts is enabling direct access to the highest court. Recognising the role that direct access can play to advance access to justice, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice. Somewhat surprisingly given this formal acknowledgment of the potential public interest served through direct access, there has been no comprehensive analysis of the Constitutional Court’s direct access practice. This article fills this gap by evaluating — from a pro-poor perspective — the court’s approach to direct access. It does so by first outlining the applicable rules and principles governing direct access applications. It then examines the court’s direct access record between 1995 and 2013 highlighting that, in stark contrast to the highest courts in other developing countries, the South African Constitutional Court has interpreted its direct access mandate conservatively, seeking to restrict rather than to expand direct access. Thereafter, the article analyses the arguments against and for direct access, before concluding that the court’s conservative approach weakens its position in terms of popularising the Constitution and acting as an institutional voice for the poor.