ACCESS TO JUSTICE: FROM LEGAL REPRESENTATION TO PROMOTION OF EQUALITY AND SOCIAL JUSTICE − ADDRESSING THE LEGAL ISOLATION OF THE POOR

Abstract

From the perspective of the legal system, the first decade of democracy has been characterised by the dominant discourse of access to justice. Section 35 of the Constitution guarantees the right of an accused person to legal representation at state expense, where a “substantial injustice” might otherwise result. Thus, access to justice has routinely come to be defined as access to legal representation in criminal trials. This interpretation of the notion of access to justice is problematic because it fails to address a range of issues affecting the poor in our society, notably the realisation of their socio-economic rights. This article argues that the concept of access to justice needs to be redefined to incorporate the promotion of equality and social justice for the poor and other vulnerable groups in our society.
Such redefinition will, of necessity, entail important shifts in the conceptualisation of
legal aid provision, as well as concomitant budgetary and other consequences.
The article examines various strategies to address the legal isolation of the poor,
and concludes with some recommendations as to how the reconceptualised project
for access may be achieved.