Alternative dispute resolution (ADR) could be used to improve access to justice in South Africa for socially and economically disadvantaged groups.
Access to courts is a constitutional right, but access to justice is a concept which goes beyond the availability of the court process. It refers to different methods by which an individual may obtain legal assistance.
Access to justice
The concept of access to justice has two major components. The first is the adequacy of access to legal services. All people, regardless of their location, background, and economic status, should have access to high-quality legal services or effective conflict resolution mechanisms to protect their rights and interests.
The second is equality before the law. Everyone should be treated equally, regardless of race, ethnic origin, gender, social status, or any other impermissible basis for discrimination.
Given escalating levels of poverty, inequality, unemployment, as well as the high cost of living, and the ever-changing legal landscape in South Africa, access to justice for most citizens has proven to be difficult to attain.
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The impacts of unequal access to justice in the changing legal landscape are felt most acutely by the economically disadvantaged and the socially and commercially marginalised. These citizens may have limited ability to seek legal aid, successfully participate in the legal system through access to courts, tribunals, and alternative conflict resolution, and effectively participate in law-related processes.
Expanding alternative mechanism to provide justice
ADR is an increasingly important and expanding alternative mechanism to provide justice. ADR has different mechanisms which have been introduced into processes followed by courts and other tribunals, sometimes peremptorily, sometimes voluntarily.
ADR, as a tool to administer justice, needs to ensure effective administration of justice. It needs to be accessible to all those who may need it, not only to a certain class of individuals.
Justice must be accessible through all the mechanisms available to access it. When establishing ADR mechanisms, access to justice is of paramount importance and ought to be at the centre of those mechanisms. The justice system becomes more effective and equitable when citizens of all classes have equal access to legal services.
Challenges in accessing justice
When addressing the challenges that economically disadvantaged and marginalised people face, it is critical to identify who they are, what disadvantages they face, how these disadvantages limit their access to justice, and which areas of law are likely to be most relevant, and to which groups of socially or economically disadvantaged people.
People who live in South Africa’s remote areas face issues of physical access to justice. This includes not having access to institutions such as courts and tribunals, or to competent intermediaries and early intervention services.
Remote areas are also less technologically advanced, with less access to internet services and other online support. The majority of legal information is written down. People with limited literacy abilities may have difficulty acquiring and understanding information about their legal rights and obligations. Lack of sufficient motivation, power, and information to initiate and pursue litigation is another challenge faced by the poor.
Economically disadvantaged people include those who do not work, receive social security, or have little income. These people are less likely to have the skills or education needed to prevent a legal problem from escalating. They also have less access to non-legal options for early intervention and non-legal support services. Similarly, they are less likely to be able to participate directly in legal reform or systemic change.
Courts are extremely bureaucratic
The procedures and paperwork are complex and incomprehensible to a layman. ADR, a mechanism where parties have control over what happens, is a good mechanism to ensure effectiveness and transparency in the proceedings.
There is a need for the state to intervene and invest in the ADR mechanisms to financially assist the economically disadvantaged.
When redressing the challenges and injustices suffered in the course of the administration of justice, the focus should be on the needs and interests of the litigants, not exclusively on the processes and formalities of litigation. This is particularly important because access to justice complements the rule of law, as it creates venues for those with economic, social, and cultural disadvantages to accede to and benefit from judicial services.
ADR mechanisms are an important means of providing citizens with more effective access to justice. There are law clinics to help the economically and socially disadvantaged, however the extent and quality of justice available to lower-income and other marginalised groups of citizens through law clinics may differ considerably from the legal services provided by law firms.
The access to justice programmes need continual funding to ensure sustainability in the administration of justice, especially where it aims to cater for the marginalised.
ADR mechanisms as a means to access justice
It is often the socially and economically disadvantaged who find themselves fighting against big organisations and economically advantaged individuals over issues ranging from labour to land, home financing, etc. In these proceedings, power imbalances and skewed wealth and resources become evident.
Improving these disparities by effectively enacting citizens’ fundamental rights, the right to access to courts in this instance, requires deliberate strategies. Although the right of access to courts does not affect the principle that parties have the right to choose the forum in which they would like their matter heard, mediation and negotiation can be especially used in environmental and financing disputes.
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The courts may be used as the last resort. This would ensure that marginalised groups are on the same footing as the privileged in accessing justice, as they do not have to follow complex court processes and would minimise the chances of incurring costs for the legal proceedings. The use of these ADR mechanisms in South Africa would ensure a more flexible and easily accessible peace-building process as part of a broader reform effort.
Because ADR procedures are so expensive, many economically disadvantaged people cannot use them. Publicly financed dispute resolution centres should be considered to make ADR more accessible. ADR mechanisms should be funded by the government, just as courts are, given that they are ‘alternatives’ to courts.
Another option is to have people who litigate subsidise the costs of providing conflict resolution services to those who want to settle their disputes out of court. The use of trained volunteer mediators to resolve conflicts outside courts is another option that should be taken into account. Due to the demand likely exceeding the supply of mediators, this programme might not be the most effective when used alone, but it might be most effective when combined with the other mechanisms.
The demands upon people offering services in contested proceedings may be greatly reduced if alternative forums for conflict resolution are available. It would be ideal to train legal practitioners to act as inquisitorial arbitrators or counsel to settle civil disputes for the underprivileged. This could count towards fulfilment of pro bono service obligations or be otherwise made available on a reduced fee basis. This will both assist with access to justice and improve legal practitioners’ skills in ADR. This could be particularly useful in matters relating to family law, consumer law, employment law, land restitution and property law, but is not confined to those fields.
Studies have shown that the adversarial system is not always the best setting for settling disputes in a way that will promote collaboration, co-operation and compliance among parties who will often continue their relationship afterwards.
In conclusion
Socially and economically disadvantaged people are at a disadvantage when it comes to accessing justice and exercising and protecting their rights.
ADR mechanisms are a greater alternative to traditional courts and tribunals, and they can greatly contribute to effective and equitable access to justice. ADR mechanisms offer a way to shorten the time taken to resolve disputes, as well as reduce costs and the adversarial nature of proceedings.
There is a need to explore seriously the use of ADR mechanisms as an alternative to the traditional court processes. Creative ways to ensure free or reduced fee access to alternative forums for conflict resolution for the economically disadvantaged must be considered as a priority. This access could enhance the rights of those currently excluded from effective dispute resolution activity and improve the skills of legal practitioners and adjudicators.
Vlad Movshovich is a Partner at Webber Wentzel Attorneys.
Kanyiso Kezile is a Candidate Attorney at Webber Wentzel Attorneys.
