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We Have a Way to Go to Achieve Justice for All

by Glen Ashton

Our constitution is clear about equal rights. It unambiguously says; “Everyone is equal before the law and has the right to equal protection and benefit of the law.” It goes further to clarify that there is to be no discrimination on any grounds – age, race, sex, religion, class and so on. Justice is meant to be blind to individual circumstance.

One can argue that equality is ensured through, say, the right to representation of anyone charged with a crime, or by the fact that everyone has the right to remain silent, and so on. These legal finesses miss a major point, by no means unique to South Africa, that the justice system inevitably provides greater benefits to those with the means to both access and exploit it, than to those without the means, the poor majority.

It has long been the case that not all are equal before the law. Australia would not be the nation it now is were it not for excessively punitive practices that targeted the poor of England. Even today in the USA a disproportionate number of the prisoners are from poor, minority communities.

Even our advanced constitution does not actively enable the poor sufficient access to the law. Disproportionate legal justice resources are engaged by wealthy private and corporate entities, seeking primarily to preserve and protect their interests. For this sector the law is simply a tool to maintain and entrench their wealth.

Representatives of poorer communities, such as housing rights group Abahlali baseMjondolo, struggle with access to legal recourse and justice. The justice system is perceived more as an obstacle to be negotiated than a tool to benefit them. This is supported by Abahlali’s open letter they sent President Zuma earlier this year, which states, amongst other things, that the poor are being forced out of meaningful citizenship, are becoming poorer and are being denied access to land.

In rural areas, workers on farms are generally isolated from access or recourse to law and rely upon the circumspect goodwill and generosity of employers to accede to the rule of law and transparent justice.

Neither are those living in the old apartheid “homeland” states, under tribal and customary law – especially women – able to freely access justice. They are blocked by layers of traditional protocol, often coupled to the vested interests of male-oriented social mores.

Rural communities remain isolated from meaningful access to legal recourse, information on labour laws, inheritance rulings handed down in the courts and other important developments toward the legislative and juristic realisation of the new South Africa.

There remains a fundamental disconnect between active, implemented rights and theoretical, passive rights. For instance, if the shack-dwellers movement wants action, they have shown that repeated appeals to the state are fruitless. They have to use their limited means to seek redress.

Similarly, immigrants remain marginalised even though they have the same rights as residents. Instead they are compromised by the double jeopardy of discrimination by authorities and the marginalisation within the communities they live in. Both shack-dwellers and foreigners have rights which remain largely in abeyance.

The justice system is structured in such a way that it places the onus on these, and other marginalised groups, to find access and to gain legal representation to realise their constitutional rights.

The legal fraternity realise that there are worthwhile cases to be taken up in the pursuit of social justice and there have been many invitations to lodge them. However this overlooks the practical difficulties of access to the law by poor, marginalised communities battling for entry in an already overburdened justice system.

There are presently two major players which occupy most of the space within the justice system. Firstly there is the state, which runs and manages both the legal and justice systems, together with its punitive and operational arms, the prisons and police. The state manifests its power and will through its operationalisation of the law.

Secondly, the law is exploited not so much by individuals as it is by private entities such as corporations and companies. These habitually push the limits of the law on the one hand and exploit it on the other so as to maximise profits and commercial gain. Commercial law occupies a vast field that covers everything related to the earning of money and profit and consumes an inordinate amount of the justice systems time, exacerbating pressure on the system.

However there is an increasingly important sector that has historically played an important part in the field of justice, law and jurisprudence. This is the increasingly organised group of NGOs that involve themselves in pursuing access to and equality before the law. South Africa has a rich heritage of both legal rights groups, often supported by members of the legal fraternity availing themselves to fight injustice.

Since 1994 this legacy has become more formalised and is broadening. We have seen organisations such as the Legal Resources Centre, the Foundation for Human Rights, Section 27 and the AIDS Law Project, Lawyers for Human Rights, the Centre for Environmental Justice and many more begin to fill some of the more obvious gaps in pursuit of a more equitable justice system.

Many landmark judgements have resulted from the work of these organisations, funded from diverse local and international sources. Additionally, members of the legal profession have been called upon to donate time and resources for the common good and the fruits of these efforts are trickling through.

Living as we do in the most unequal society in the world, and one that has become increasingly so since the new constitutional dispensation, it is obvious the vision laid out in the Freedom Charter cannot be achieved solely by political means.

While much has been achieved, many outstanding issues remain. Political focus has become distracted from its social responsibilities by bickering, infighting and the active pursuit of personal wealth by the political elite. It is not only political activism that is required but perhaps more urgently, legal activism. Careful consideration must be given to its manifestation.

While the justice system has produced some progressive gems such as the Grootboom case – where shack dwellers were granted security of not just tenure, but the state was forced to provide housing – the very principles of redistributive justice remain marginalised by the expediency of the dominance of the ‘business as usual’ neoliberal approach of the state.

The acquisition of fishing rights by artisinal and subsistence fishers through the courts has yet to be practically implemented but this was a long fought legal battle against the state and private industry. This victory promises a better life for those who have traditionally worked in that sector.

If we are to solve the vexing sense of isolation that the majority experience in failing to access justice around land tenure and redistribution, employment for all, safety and security, a clean environment, health, education and all of the related necessities that define a decent, dignified life, then we must clearly step up our pursuit of a more egalitarian justice system. Everyone needs to be able to seek redress and achieve their constitutional rights through open and transparent access to the legal system.

Women on farms and tribal lands, people continuing to suffer the ill effects of economic and environmental exploitation, those seeking access to land to grow food, are just a few of the powerful cases that have received insufficient legal attention.

Some victories have been won in the struggle to transform ourselves. Yet we still have a long journey to travel until we can collectively appreciate the practical fruits of freedom, not just theoretical constitutional concepts. We need to transform our passive constitutional rights into active, tangible benefits so that we can all stand equal before the law.