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A Comparative View Of Access To Justice From A South African And UK Perspective – Litigation, Mediat…

A Comparative View Of Access To Justice From A South African And UK Perspective – Litigation, Mediat…

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Co-authored by James Morrison, Ashfords LLP

Access to justice as a corner stone of the legal profession is
recognised as a basic human right in most jurisdictions. It is
synonymous with effective access to courts and recognises that
everyone is entitled to the protection and effective enforcement of
the law.

The barriers to access to justice from a South African and UK
perspective are distinct, yet similar in that it is often treated
as a commodity and remains available to a select few, often to the
exclusion of the poor. We discuss a few common barriers to access
in South Africa as well as the UK below:

Legal fees and costs to institute proceedings

The costs of legal representation are uncertain, and often very
expensive. Although both South Africa and the UK have legal aid
available to its citizens (either in the form of government
subsidies or access to free legal clinics) the monetary threshold
for legal aid is too low to provide effective support for low to
middle income groups.

In South Africa, the monetary threshold for legal aid is
determined by the ‘Means Test’. In order to qualify for
legal aid in South Africa, an individual must earn less than
R7,400.00 per month, not own assets worth more than R128,000.00,
and if the person owns a house, the total value of the house and
all other belongings must be less than R640,000.00. The Means Test
therefore still excludes a large percentage of the South African
population who will not be eligible for legal aid, yet will be
unable to afford legal representation.

In the UK, eligibility for legal aid is determined on a case by
case basis based on the type of case and the person’s financial
circumstances, wherein a person must prove that they are unable to
afford the litigation. That said, the scope of the UK’s legal
aid regime has been severely limited in recent years such that
legal aid is unavailable in most civil cases.

In addition to the fees to obtain legal representation, the
English & Welsh courts further require fees to institute
proceedings based on the value of the claim, which is referred to
as ‘Issue Fees’. These fees are payable by all litigants
issuing proceedings in England & Wales, save for individuals on
low incomes. In the UK there was a huge increase in Issue Fees on 9
March 2015, for example, for cases with a claim worth
£200,000, there was an increase of 660%. The increase
inevitably had an impact on a claimant’s appetite to issue
proceedings and is a barrier to access to justice in circumstances
where exemption from the Issue Fees is not granted.

The pre-increase and current issue fees (as at the date of
writing) are set out below:

Pre-9 March
’15 fee for issue
New fee for
issuing at court
more than £300,000
or an unlimited amount
£1,920 £10,000
£250,000.01 -
£1,720 £10,000
£200,000.01 -
£1,515 £10,000
£150,000.01 -
£1,315 5% of the claim
£100,000.01 -
£1,115 5% of the claim
£50,000.01 -
£910 5% of the claim
£15,000.01 -
£610 5% of the claim
£10,000.01 -
£455 5% of the claim

Awareness of rights

Access to justice does not only mean access to courts. Another
important aspect of access to justice is that people must have some
basic understanding of their rights in a language that is familiar
in order to enforce those rights.

In both the UK and South Africa, legislation and case law are
readily available. However, various statutes and the
interpretations thereof are complex and does not assist people to
understand and protect their basic rights. South Africa has 11
official languages, however, the primary language of most statues
and judgements is English (and in certain instances Afrikaans)
which may exclude a large percentage of the population. Legal
representation is often still required (even in simple matters)
because the language used in legislation is difficult to understand
by the general population.

Over-burdened court system

Another barrier to access is that the courts are overburdened. A
dispute could take several years to be resolved through the court
system, regardless of whether a person has legal representation.
Specifically, in South Africa where there are insufficient
resources readily available to the court (in terms of staff,
technology and facilities), a matter could unnecessarily become
delayed. In the UK, civil disputes can regularly take more than a
year to be resolved with higher value cases taking even longer.

The delay period for the resolution of a dispute can often deter
a potential litigant from seeking redress.

Bolstering access to justice

The legal profession is committed to addressing the need
for better access to justice, and it has done so using various

Alternative dispute resolution

Alternative dispute resolution is the procedure for settling
disputes without having to litigate or approach the court. It
includes negotiation, mediation and arbitration which are becoming
increasingly popular in the UK, South Africa and various other

The benefits of alternative dispute resolution are that it can
be more affordable; more flexible and responsive to the individual
needs of the matter; confidential and can lead to the quicker
resolution of a dispute.

In the UK, the most prominent alternative dispute resolution in
commercial, employment and family law related matters are to
mediate, whereas international disputes tend to go on arbitration.
In South Africa, the trend in commercial matters is to arbitrate,
whereas various employment and family related matters often become
resolved during mediation.

Alternative sources of funding or payment

The high costs of litigation have given rise to litigation
funding by a third party in return for a portion of the claim, if
successful. Litigation funding is common in the UK but is fairly
new in South Africa.

Another option for potential litigants who are unable to afford
representation is to request whether a legal practitioner would act
on contingency. This type of ‘no-win, no-fee’ agreement
means that a legal practitioner will ask no fees if the claim is
unsuccessful. However, if the claim succeeds, they are entitled to
charge double their normal time-based fees or 25% of the settlement
(whichever amount is lower). Contingency fee agreements are
common in Road Accident Fund or Personal Injury related matters.
Although contingency fee agreements go a far way to assist
potential litigants to be able to obtain recourse, these agreements
have previously been abused by legal practitioners who charged
inflated fees. [See Ronald Bobroff & Partners Inc v De La
Guerre; South African Association of Personal Injury Lawyers v
Minister of Justice and Constitutional
2014 (3) SA 134

Litigation funding and contingency fee agreements provide a
possible solution (although not perfect) to claimants who cannot
afford legal representation and is a step in the right direction
towards ensuring effective access to justice.

Intervention by the courts

Another barrier to access to justice is the uncertainty of legal
fees. It is not unusual for a party’s legal costs to approach
the amount in dispute. In response, the English & Welsh courts
have implemented measures to try and encourage the parties to limit
their legal spend. The UK courts require a cost budget hearing for
all claims up to a value of £10 000 000.00. In cost
budgeting, parties are required to forecast their legal costs
shortly after the close of pleadings. The court reviews these
budgets at a formal hearing and essentially caps the sums of legal
costs which parties can seek to recover if successful at the end of
a case. It is common for a Judge to limit a cost budget in the name
of preserving the proportionality of legal costs in relation to the
sum in dispute.

Another attempt by the English & Welsh courts to reduce
costs is to limit the scope of discovery/ disclosure (where a party
must disclose all documents relevant to the matter in dispute). The
discovery/ disclosure process is responsible for a significant
proportion of the costs in civil litigation. To address this issue,
England and Wales’ Business and Property Courts introduced a
pilot scheme at the beginning of this year aimed at reducing the
extent of disclosure ordered in most cases. Parties are encouraged
to provide an initial round of disclosure at the start of a case
with any further orders for disclosure based on the unique
requirements of the case. The pilot is still at an early stage and
its success will be difficult to gauge for some to come.

In South Africa, the courts are also trying to limit disputes,
force the parties to engage with each other more regularly and to
prevent postponements by introducing case management, a
certification hearing to proclaim a matter ready for trial (for
certain type of matters) and a specialised commercial court roll
(with inherent case management procedures).

Intervention by the courts in both the UK and South Africa is
aimed at limiting issues in dispute, preventing postponements and
inflated legal costs, as well as creating a platform for the
parties to engage which could lead to potential settlement.

The small claims court

In England & Wales, efforts have been made to encourage
access to the courts by unrepresented parties. All claims valued at
£10,000 or less are allocated to an expedited court process
called the “small claims track”. Under this process, only
limited costs are recoverable to the winning party and this
excludes the fees of legal representatives. This has understandably
increased the number of litigants in person bringing claims of this
value rather than using lawyers. The court has attempted to respond
to this by making an accessible online IT system for litigants to
issue and respond to such claims. Judges are also given special
training for hearing unrepresented parties and solicitors and
barristers are issued with guidance for acting against them.

South Africa has also established a Small Claims Court for
claims that do not exceed R20 000 (the maximum claim was increased
from R15 000 on 1 April 2019). This court was implemented to make
justice less expensive and more accessible. Legal representation is
not allowed in the Small Claims Court, and a party is required to
personally present their case of defence. Representation may be
made in any of the 11 official languages in South Africa, and
offers affordable recourse to various claimants.

The establishment of pro-bono departments

In both South Africa and the UK, various law firms have reacted
to the lack of access to justice by either establishing in-house
pro-bono departments, assisting legal clinics or accepting pro-bono
matters on referral from the Law Societies or Legal councils.

However, even if every law firm were to offer free assistance to
those in need, various barriers to access to justice will remain as
the need for assistance will outweigh the available resources.

Raising awareness and making legislation more

Access to justice can be advanced through awareness campaigns
(in which the government, law firms, and universities have a role
to play) and making law less complex, unambiguous and more
understandable. In South Africa, there are also various initiatives
to translate the Constitution to all 11 official languages. We hope
that this initiative will extend to other statutes.

A lack of effective access to justice is not a problem unique to
developing countries. This is a concern faced in the UK, South
Africa and various other jurisdictions. The legal profession in
both the UK and South Africa must continuously improve access to
justice at all levels. Although large strides have already been
taken to ensure access to justice, a lot more needs to be done in
order to give enough recognition and protection to this fundamental
human right.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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