The principle of equality, legal aid and transformative Constitution in South Africa: A critical analysis
Authors Serges Djoyou Kamga
Affiliations: Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 607 – 630
The principle of equality is at the centre of the South African Constitution, which aims to establish an egalitarian society. As shown by the empowering nature of the jurisprudence of the South African Constitutional Court, the latter plays an important role in giving effect to socio-economic rights. Yet, the poor have no legal aid, and therefore no access to court especially in civil matters through which their socio-economic rights can be addressed. This shows that a considerable potential of the Constitution is not realised. Arguably, a key constraint is the lack of legal aid for the poor. Legal aid is crucial in South Africa where only a few people can afford the services of lawyers. This article critically explores the extent to which the Constitution has been transformative for the poor, in terms of guaranteeing their access to justice through legal aid. Answering this question entails addressing the extent to which legal aid provided by the legal system is in line with the tenets of equality which inform the Constitution. In assessing the realisation of the rights of the poor through legal aid, this article examines legal and policy documents, as well as the state’s practice pertaining to legal aid.