The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:26864 |
| Date | January 2014 |
| Creators | Holness, David Roy |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Doctoral, LLD |
| Format | 338 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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