Co-authored by James Morrison, Ashfords LLP<\/strong><\/p>\n Access to justice as a corner stone of the legal profession is
The barriers to access to justice from a South African and UK
The costs of legal representation are uncertain, and often very
In South Africa, the monetary threshold for legal aid is
In the UK, eligibility for legal aid is determined on a case by
In addition to the fees to obtain legal representation, the
The pre-increase and current issue fees (as at the date of
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Access to justice does not only mean access to courts. Another
In both the UK and South Africa, legislation and case law are
Another barrier to access is that the courts are overburdened. A
The delay period for the resolution of a dispute can often deter
The legal profession is committed to addressing the need
Alternative dispute resolution is the procedure for settling
The benefits of alternative dispute resolution are that it can
In the UK, the most prominent alternative dispute resolution in
The high costs of litigation have given rise to litigation
Another option for potential litigants who are unable to afford
Litigation funding and contingency fee agreements provide a
Another barrier to access to justice is the uncertainty of legal
Another attempt by the English & Welsh courts to reduce
In South Africa, the courts are also trying to limit disputes,
Intervention by the courts in both the UK and South Africa is
In England & Wales, efforts have been made to encourage
South Africa has also established a Small Claims Court for
In both South Africa and the UK, various law firms have reacted
However, even if every law firm were to offer free assistance to
Access to justice can be advanced through awareness campaigns
A lack of effective access to justice is not a problem unique to
The content of this article is intended to provide a general
\nrecognised as a basic human right in most jurisdictions. It is
\nsynonymous with effective access to courts and recognises that
\neveryone is entitled to the protection and effective enforcement of
\nthe law.<\/p>\n
\nperspective are distinct, yet similar in that it is often treated
\nas a commodity and remains available to a select few, often to the
\nexclusion of the poor. We discuss a few common barriers to access
\nin South Africa as well as the UK below:<\/p>\nLegal fees and costs to institute proceedings<\/h3>\n
\nexpensive. Although both South Africa and the UK have legal aid
\navailable to its citizens (either in the form of government
\nsubsidies or access to free legal clinics) the monetary threshold
\nfor legal aid is too low to provide effective support for low to
\nmiddle income groups.<\/p>\n
\ndetermined by the ‘Means Test’. In order to qualify for
\nlegal aid in South Africa, an individual must earn less than
\nR7,400.00 per month, not own assets worth more than R128,000.00,
\nand if the person owns a house, the total value of the house and
\nall other belongings must be less than R640,000.00. The Means Test
\ntherefore still excludes a large percentage of the South African
\npopulation who will not be eligible for legal aid, yet will be
\nunable to afford legal representation.<\/p>\n
\ncase basis based on the type of case and the person’s financial
\ncircumstances, wherein a person must prove that they are unable to
\nafford the litigation. That said, the scope of the UK’s legal
\naid regime has been severely limited in recent years such that
\nlegal aid is unavailable in most civil cases.<\/p>\n
\nEnglish & Welsh courts further require fees to institute
\nproceedings based on the value of the claim, which is referred to
\nas ‘Issue Fees’. These fees are payable by all litigants
\nissuing proceedings in England & Wales, save for individuals on
\nlow incomes. In the UK there was a huge increase in Issue Fees on 9
\nMarch 2015, for example, for cases with a claim worth
\n\u00a3200,000, there was an increase of 660%. The increase
\ninevitably had an impact on a claimant’s appetite to issue
\nproceedings and is a barrier to access to justice in circumstances
\nwhere exemption from the Issue Fees is not granted.<\/p>\n
\nwriting) are set out below:<\/p>\n\n
\n Claim
\nvalue<\/strong><\/td>\nPre-9 March
\n’15 fee for issue<\/strong><\/td>\nNew fee for
\nissuing at court<\/strong><\/td>\n
\n<\/tr>\n\n more than \u00a3300,000
\nor an unlimited amount<\/td>\n\u00a31,920<\/td>\n \u00a310,000<\/td>\n
\n<\/tr>\n\n \u00a3250,000.01 -
\n\u00a3300,000<\/td>\n\u00a31,720<\/td>\n \u00a310,000<\/td>\n
\n<\/tr>\n\n \u00a3200,000.01 -
\n\u00a3250,000<\/td>\n\u00a31,515<\/td>\n \u00a310,000<\/td>\n
\n<\/tr>\n\n \u00a3150,000.01 -
\n\u00a3200,000<\/td>\n\u00a31,315<\/td>\n 5% of the claim
\nvalue<\/td>\n
\n<\/tr>\n\n \u00a3100,000.01 -
\n\u00a3150,000<\/td>\n\u00a31,115<\/td>\n 5% of the claim
\nvalue<\/td>\n
\n<\/tr>\n\n \u00a350,000.01 -
\n\u00a3100,000<\/td>\n\u00a3910<\/td>\n 5% of the claim
\nvalue<\/td>\n
\n<\/tr>\n\n \u00a315,000.01 -
\n\u00a350,000<\/td>\n\u00a3610<\/td>\n 5% of the claim
\nvalue<\/td>\n
\n<\/tr>\n\n \u00a310,000.01 -
\n\u00a315,000<\/td>\n\u00a3455<\/td>\n 5% of the claim
\nvalue<\/td>\n
\n<\/tr>\n<\/table>\nAwareness of rights<\/h3>\n
\nimportant aspect of access to justice is that people must have some
\nbasic understanding of their rights in a language that is familiar
\nin order to enforce those rights.<\/p>\n
\nreadily available. However, various statutes and the
\ninterpretations thereof are complex and does not assist people to
\nunderstand and protect their basic rights. South Africa has 11
\nofficial languages, however, the primary language of most statues
\nand judgements is English (and in certain instances Afrikaans)
\nwhich may exclude a large percentage of the population. Legal
\nrepresentation is often still required (even in simple matters)
\nbecause the language used in legislation is difficult to understand
\nby the general population.<\/p>\nOver-burdened court system<\/h3>\n
\ndispute could take several years to be resolved through the court
\nsystem, regardless of whether a person has legal representation.
\nSpecifically, in South Africa where there are insufficient
\nresources readily available to the court (in terms of staff,
\ntechnology and facilities), a matter could unnecessarily become
\ndelayed. In the UK, civil disputes can regularly take more than a
\nyear to be resolved with higher value cases taking even longer.<\/p>\n
\na potential litigant from seeking redress.<\/p>\nBolstering access to justice<\/h3>\n
\nfor better access to justice, and it has done so using various
\ninterventions.<\/strong><\/p>\nAlternative dispute resolution<\/em><\/h3>\n
\ndisputes without having to litigate or approach the court. It
\nincludes negotiation, mediation and arbitration which are becoming
\nincreasingly popular in the UK, South Africa and various other
\njurisdictions.<\/p>\n
\nbe more affordable; more flexible and responsive to the individual
\nneeds of the matter; confidential and can lead to the quicker
\nresolution of a dispute.<\/p>\n
\ncommercial, employment and family law related matters are to
\nmediate, whereas international disputes tend to go on arbitration.
\nIn South Africa, the trend in commercial matters is to arbitrate,
\nwhereas various employment and family related matters often become
\nresolved during mediation.<\/p>\nAlternative sources of funding or payment
\narrangements<\/em><\/h3>\n
\nfunding by a third party in return for a portion of the claim, if
\nsuccessful. Litigation funding is common in the UK but is fairly
\nnew in South Africa.<\/p>\n
\nrepresentation is to request whether a legal practitioner would act
\non contingency. This type of ‘no-win, no-fee’ agreement
\nmeans that a legal practitioner will ask no fees if the claim is
\nunsuccessful. However, if the claim succeeds, they are entitled to
\ncharge double their normal time-based fees or 25% of the settlement
\n(whichever amount is lower<\/u>). Contingency fee agreements are
\ncommon in Road Accident Fund or Personal Injury related matters.
\nAlthough contingency fee agreements go a far way to assist
\npotential litigants to be able to obtain recourse, these agreements
\nhave previously been abused by legal practitioners who charged
\ninflated fees. [See Ronald Bobroff & Partners Inc v De La
\nGuerre; South African Association of Personal Injury Lawyers v
\nMinister of Justice and Constitutional<\/em> 2014 (3) SA 134
\n(CC)];<\/p>\n
\npossible solution (although not perfect) to claimants who cannot
\nafford legal representation and is a step in the right direction
\ntowards ensuring effective access to justice.<\/p>\nIntervention by the courts<\/em><\/h3>\n
\nfees. It is not unusual for a party’s legal costs to approach
\nthe amount in dispute. In response, the English & Welsh courts
\nhave implemented measures to try and encourage the parties to limit
\ntheir legal spend. The UK courts require a cost budget hearing for
\nall claims up to a value of \u00a310 000 000.00. In cost
\nbudgeting, parties are required to forecast their legal costs
\nshortly after the close of pleadings. The court reviews these
\nbudgets at a formal hearing and essentially caps the sums of legal
\ncosts which parties can seek to recover if successful at the end of
\na case. It is common for a Judge to limit a cost budget in the name
\nof preserving the proportionality of legal costs in relation to the
\nsum in dispute.<\/p>\n
\ncosts is to limit the scope of discovery\/ disclosure (where a party
\nmust disclose all documents relevant to the matter in dispute). The
\ndiscovery\/ disclosure process is responsible for a significant
\nproportion of the costs in civil litigation. To address this issue,
\nEngland and Wales’ Business and Property Courts introduced a
\npilot scheme at the beginning of this year aimed at reducing the
\nextent of disclosure ordered in most cases. Parties are encouraged
\nto provide an initial round of disclosure at the start of a case
\nwith any further orders for disclosure based on the unique
\nrequirements of the case. The pilot is still at an early stage and
\nits success will be difficult to gauge for some to come.<\/p>\n
\nforce the parties to engage with each other more regularly and to
\nprevent postponements by introducing case management, a
\ncertification hearing to proclaim a matter ready for trial (for
\ncertain type of matters) and a specialised commercial court roll
\n(with inherent case management procedures).<\/p>\n
\naimed at limiting issues in dispute, preventing postponements and
\ninflated legal costs, as well as creating a platform for the
\nparties to engage which could lead to potential settlement.<\/p>\nThe small claims court<\/em><\/h3>\n
\naccess to the courts by unrepresented parties. All claims valued at
\n\u00a310,000 or less are allocated to an expedited court process
\ncalled the “small claims track”. Under this process, only
\nlimited costs are recoverable to the winning party and this
\nexcludes the fees of legal representatives. This has understandably
\nincreased the number of litigants in person bringing claims of this
\nvalue rather than using lawyers. The court has attempted to respond
\nto this by making an accessible online IT system for litigants to
\nissue and respond to such claims. Judges are also given special
\ntraining for hearing unrepresented parties and solicitors and
\nbarristers are issued with guidance for acting against them.<\/p>\n
\nclaims that do not exceed R20 000 (the maximum claim was increased
\nfrom R15 000 on 1 April 2019). This court was implemented to make
\njustice less expensive and more accessible. Legal representation is
\nnot allowed in the Small Claims Court, and a party is required to
\npersonally present their case of defence. Representation may be
\nmade in any of the 11 official languages in South Africa, and
\noffers affordable recourse to various claimants.<\/p>\nThe establishment of pro-bono departments<\/em><\/h3>\n
\nto the lack of access to justice by either establishing in-house
\npro-bono departments, assisting legal clinics or accepting pro-bono
\nmatters on referral from the Law Societies or Legal councils.<\/p>\n
\nthose in need, various barriers to access to justice will remain as
\nthe need for assistance will outweigh the available resources.<\/p>\nRaising awareness and making legislation more
\naccessible<\/em><\/h3>\n
\n(in which the government, law firms, and universities have a role
\nto play) and making law less complex, unambiguous and more
\nunderstandable. In South Africa, there are also various initiatives
\nto translate the Constitution to all 11 official languages. We hope
\nthat this initiative will extend to other statutes.<\/p>\n
\ndeveloping countries. This is a concern faced in the UK, South
\nAfrica and various other jurisdictions. The legal profession in
\nboth the UK and South Africa must continuously improve access to
\njustice at all levels. Although large strides have already been
\ntaken to ensure access to justice, a lot more needs to be done in
\norder to give enough recognition and protection to this fundamental
\nhuman right.<\/p>\n
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n
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