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:

Claim value 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 - £300,000 £1,720 £10,000
£200,000.01 - £250,000 £1,515 £10,000
£150,000.01 - £200,000 £1,315 5% of the claim value
£100,000.01 - £150,000 £1,115 5% of the claim value
£50,000.01 - £100,000 £910 5% of the claim value
£15,000.01 - £50,000 £610 5% of the claim value
£10,000.01 - £15,000 £455 5% of the claim value

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 interventions.

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 jurisdictions.

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 arrangements

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 (CC)];

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 accessible

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.