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n South African Journal on Human Rights - Courts and the poor in South Africa : a critique of systemic judicial failures to advance transformative justice

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Abstract

Under apartheid the judiciary failed to meaningfully confront a racially-divided South Africa in which civil and political rights were denied to the majority of South Africans. The apartheid judiciary was able to rationalise a generalised failure to craft socially just rulings by claiming that law was distinct from morality. In the constitutional era judges are not afforded the luxury of amorality. The Constitution, which is an explicitly moral document, binds the judiciary (along with the legislature, the executive and all organs of state) to upholding constitutional values. The judiciary is expected to 'promote the values that underlie an open and democratic society based on human dignity, equality and freedom' and it is required always to 'promote the spirit, purport and objects of the Bill of Rights'. How, then, has the post-apartheid judiciary dealt with the challenges of adjudication in an increasingly socio-economically divided society in which poverty is widespread and inequality is escalating? As an institution, the judiciary is found to have failed to advance transformative justice in critical systemic ways. Specifically, the judiciary has failed to improve access to legal representation for the poor (by not delineating a comprehensive right to legal representation at state expense in civil matters and under-utilising the in forma pauperis procedure in courts), and to promote public interest litigation (through maintaining a practice of wide discretion in awarding costs orders, including awarding costs against winning public interest organisations, and as a result of the Constitutional Court's reticence to allow direct access, even for clear matters of public interest). Finally, the weak socio-economic rights record of the Constitutional Court has further diminished the capacity of the judiciary to act as an institutional voice for the poor.

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/content/ju_sajhr/24/2/EJC53311
2008-01-01
2016-12-09
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